
    Elijah Welborn v. George Little.
    The Act of Assembly of 1712 gives the commissioners of the poor power to bind minors as apprentices, only where they shall become chargeable to the district.
    
    The commissioners of the poor have no right to bind an infant if its parents are living.
    An assignment of void indentures, though with the knowledge and approbation of the father, if not accompanied with the formalities required by the Act of 1740, as necessary to the validity of an indenture, will be likewise void.
    
    Tried before Mr. Justice Johnson, at Union, October term, 1818.
    The commissioners of the poor for Union district, *had, by indenture, bound Thomas Brown, a minor, apprentice to the defendant, until he should attain the age of twenty-one years. In 181-, the defendant, intending to remove to Georgia, agreed to sell the unexpired term of his apprentice, of four years, to the plaintiff, for the sum of eighty-four dollars; and put the apprentice in his possession, and delivered up the indenture, but made no written assignment thereof. About six or eight months after, the plaintiff sold the term of the apprentice, then unexpired, to a Mr. Garrison, who refused to take the indenture, unless it was assigned by the defendant to the plaintiff, and by the latter to himself. The defendant, on being called on, made a written assignment of the indenture; but there was no certificate of the assent of the father of the apprentice, or of the commissioners, to this assignment.
    It was known to the plaintiff that Garrison resided in Kentucky, and that it was his intention to carry the apprentice there, when he made the contract. Garrison set out on his way home,- and one of the commissioners, who lived in the neighborhood, and who had an agency in binding Mm to the defendant, on hearing of it, and suspecting from the. character of the parties, and from the color of the boy, (which was very dark,) that foul dealing with Mm was intended, issued a process of Ms own manufacturing, (the legality of which, it is not necessary to consider, as it answered the purpose for which it was intended, and perhaps subserved the cause of justice and humanity,) authorizing a constable to pursue Garrison, and bring the boy back; the constable did so, and the plaintiff) on Garrison‘s return, refunded him the sum which he had received; but the commissioner retained the possession of the apprentice, and refused to deliver him to the plaintiff.
    This was, therefore, an action brought by the plaintiff, to recover the amount paid by him to the defendant, as for money paid on a consideration which had failed.
    *It further appeared in evidence, that the apprentice had been bound by the commissioners to the defendant, and transferred by him to the plaintiff, with the knowledge of the father, who lived in the neighborhood ; and the commissioner, before mentioned, stated that the transfer was known to him, and that he felt satisfied with it, and should never have interfered if the plaintiff had not, as he believed,. disposed of him in such a manner as might subject him to perpetual slavery.
    The jury, on a charge from the court, favorable to the plaintiff’s right to recover, but recommending that he should be strictly confined to what was his legal right, on account of the particular circumstances of the case, found a verdict of one cent for the plaintiff.
    The plaintiff now moved for a new trial on several grounds, all of which may, however, be comprised in one, to wit:
    Because 'there was clear and unequivocal proof, that the consideration, on which the plaintiff paid his money, had failed, and the jury were not at liberty to find a less sum than that paid by him.
   The 'opinion of the Court was delivered by

ÍORtNSON, J.

But for the arguments in opposition to the motion, it might be sufficient to decide the single question made on the ground of the motion. These, however, admitting the principle contended for, go to deny the plaintiff’s right to recover in toto, and involve the questions:

1. Whether the commissioners of the poor can bind an infant apprentice while his father is living ? and,

2. "Whether an assignment of the indenture of an apprentice can be made without the written assent of-the parent, if he be living, or of the guardian or commissioners, if he have none ? -which I shall proceed, in the first place to consider:

1. By the Act of Assembly of 1712, P. L., 106, 1 Brev. Dig., 25, tit. Apprentice, sec. 1st, the commissioners of the poor are authorized to kind an7 child *or children out, apprentice; if a male, until he shall attain twenty-one years, and if a female until she shall attain eighteen years, in case they shall be chargable to the district.

The commissioners have no other powers over minors than are given by this Act; and this is confined to the single case where they shall become chargeable to the district. There was no evidence that the apprentice had become chargeable to the district; but, on the contrary, it was believed that it was thought to be the only legitimate means of binding him at the time it was done ; at any fate, he had not become chargeable to the district, and that state of things did not exist, which authorized the commissioners to act.

From the common law rules of construction, the conclusion would, it appears to me, necessarily follow that the ’ indenture of apprenticeship was void; but the Act of 1740, (P. L., 176, sec. 2, 1 Brev. Dig., 26,) puts the question beyond doubt. This act provides, that every person intending to be bound apprentice, and who is under the age of twenty-one years, shall execute such indenture in the presence of his or her father, mother, or guardian; and if such indented apprentice hath neither father, mother, nor guardian, then it shall be executed in the presence of the church-wardens, &c., which presence and approbation of the father, mother, &c., shall be certified under the hand and seal of some one of the justices of the district,” &c. This Act not only furnishes a conclusive legislative construction of the Act of 1712, but also an anwer to the argument drawn from the fact that, in this instance, it was done with the knowledge of the father, as the Act itself expressly declares that the indenture is void unless it is in conformity with the provisions of the Act.

M’Kibbin, for the motion. Thomson, contra.

It follows, then, that the assignment was also void, although the Act does allow it, under particular restrictions ; because it was not accompanied with any of the formalities required by the Act as necessary to the validity of an indenture', and could not therefore assume* the character of a new and independent contract.

It remains only to be considered whether there was an entire or partial failure of consideration. If the former, then the jury erred in not allowing the plaintiff the full amount paid by him. That there had been a failure of consideration, is, I think, clearly established; for the defendant did undertake to sell and dispose of, to the plaintiff, four years of the unexpired term of his apprentice; but he lost the possession of the boy, and he possessed no legitimate means of regaining this possession, and this, too, in consequence of the illegality of the indenture and the assignment. lie, in fact, sold nothing to the defendant, because he himself had no right. But while the apprentice served under this indenture and assignment, irregular and illegal as it was, he incurred the duty, and was entitled to the rights of an apprentice. Beeves’ Domestic Relations, 844, 345; King v. Stockland, Douglas, 70, 71. The plaintiff had, therefore, a legitimate possession of him for the six or eight months which he remained in his possession, and is secured against any claim against him for those services, at the suit of the apprentice. There is not, therefore, an entire failure of consideration.

It has, however, been urged, that there is no sort of proportion between the value of the services rendered, and the sum allowed by the jury. This was, however, a question for their consideration, and although I might be disposed to concur in this opinion, yet under the particular circumstances of the case, I do not feel disposed to disturb their verdict. The plaintiff was in the possession of the apprentice, with the knowledge and acquiescence of his father and of the commissioners; and there was the strongest probability that he never would have been disturbed in the possession, which would have legitimated the apprenticeship, but for the transfer made by himself — leading to apprehensions dishonorable to humanity — and that to a stranger, who, to his knowledge, was about *to carry him out of the State, in direct violation of a positive law.

I am therefore of opinion that the motion ought not to be granted.

Colcock, Nott, Cheves and Gantt, concurred. 
      
       2 Stat. 596, § 8.
     
      
       3 Stat. 544, § 2.
     
      
       See Acts of 1830 and 1831, 6 Stat. 410, 432.
     