Ferguson v. Tucker , 2 H. & G. 182 ( 1828 )

Dorsey, J.

delivered the opinion of the Court. There being no evidence to support the first count in the declaration, the refusal of the county court to grant the defendant’s prayer, “that upon all the evidence and the pleadings in the cause, the plaintiff was, not entitled to recover,” can only be sustained by its appearing that all the material allegations in the second count, have been established by proof before the jury.

No principle ofpleadingis more firmly settled, than that whether the action be in debt, assumpsit or tort, if it be necessary to allege a contract-in the declaration, such allegation requires proof corresponding therewith.

To entitle the plaintiff below to recover, he must allege the tenor or substance and legal effect of the indenture of apprenticeship. He has attempted to conform to this requisition by stating that “John Holland then, and from thence hitherto,” (that is, until the 17th of July 1822,) was his apprentice. His statement is falsified by the proof, which shows that the contract of apprenticeship expired on the 1st of July 1822, in virtue of the proceedings in Baltimore city court.

There being then an essential variance between the contract alleged, and that made out in proof, the county court ought to have instructed the jury, as they were required to do, that upon all the evidence and pleadings in the cause, the plaintiff was not entitled to recover. And these words “and from thence hitherto,” being of the very substance of the contract, cannot be rejected as surplusage. But suppose they were, the condition of the appellee is not changed for the better. Strike out those words, and the plaintiff below sets forth in his pleadings no cause of action, but for harbouring his apprentice on the 1st of July 1821. To sustain which the proof offered is wholly insufficient — A knowledge of the apprenticeship by Ferguson, during the harbouring, being an indispensable requisite to recovery; and the testimony adduced not even insinuating such knowledge anterior to the 4th of July 1821.

Other grounds have been assigned for the reversal of this judgment; and as this case must be sent back on procedendo, it is right that this court should not pass them over in silence. It is insisted that the defendant’s instruction ought to have been given; because the proof of knowledge of the apprenticeship in Ferguson, was too light and inconclusive to have been left to the jury to find that fact. This court think otherwise. It is true, the facts in evidence fall far short of full or conclusive proof; and we by no means intimate, that we would have drawn from them the same conclusion which has been found by the jury. But it by no means follows, even if the verdict would not be satisfactory to the minds of the court, that they would feel themselves authorised to withdraw from the jury the consideration of the facts. This prerogative of the court is never exercised, but in cases where the evidence is so indefinite and unsatisfactory that nothing but wild, irrational conjeeture, or licentious speculation, could induce a jury to pronounce the verdict which is sought at their hands. The testimony here cannot be viewed in that light. The conduct of jFerguson, when payment was demanded for the services, and notice given of the apprenticeship of Holland, were such as cannot fail to excite strong suspicions, that he knowingly harboured him. New men, under such circumstances, if the information were new, would have failed to evince some surprise at it; and still more, few would have hesitated to rescue their conduct from censure or suspicion, by asserting their ignorance of a fact, the knowledge of which was necessarily imputed by the demand. When in corroboration of the inferences derivable from the acts of Ferguson, we advert to his daily receipt of the newspaper containing the information ascribed to him, we think it would be transcending the powers of the court, and stretching the right of instruction further than it has ever yet been carried in this state, to refuse to permit the testimony to be weighed by the jury, whatever may be our opinions as to the result to which their deliberations ought to lead them.

Another ground on which the appellant relies for the reversal of the judgment is, that inasmuch as it appears, that at the time of the employment of Holland, Ferguson knew not of the apprenticeship, no action can be maintained against him, until •after a demand of the apprentice, and a refusal to deliver him up; a position not unsupported by authority, as appears by reference to Norris’s Peake’s Ev. 545. 3 Stark. Ev. 1310. Winsmore v Greenbank, Willes, 582. 3 Blk. Com. 141. But to this doctrine we are not disposed to subscribe our assent. Although at the time of hiring, Ferguson may have been ignorant of the apprenticeship of Holland, yet, if after obtaining that information, he continued to harbour him, he is liable to an action at the suit of the master, without any'proof of either •demand or refusal.- Whether the knowledge be possessed before the hiring, or after the hiring, is immaterial, either as we Tegard the nature of the injury, or its consequences upon society. As soon as the new master acquires the knowledge, he is bound to discharge the apprentice, that he may not hold out to him an inducement not to return to his original master. And his obligation to do so is equally imperious, whether the master remain in total ignorance where his apprentice may be found, or knowing that fact, make a regular demand of him. Such is the policy of our law, as evinced by the act of 1793, ch. 45, s. 8. Such is the doctrine in England, as established by the King’s Bench, in Blake v Lanyon, 6 T. R. 221.

The demand and refusal charged in the declaration in this case, being the unnecessary averment of the breach or infringement of the contract stated, need not be proyed, and may be rejected as surplusage.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.