Warner v. Swett , 7 Vt. 446 ( 1835 )

The opinion of the court was delivered by

Royce, J.

— The questions to be decided in this case arise under the first count in the declaration; since the evidence on trial, and the charge of the judge, would seem to be decisive against the second count, if the first is not supported.

It was decided in Squire vs. Whipple, 1 Vt. Rep. 69, that the relation of master and apprentice can be created only by deed, and we are not aware that the authority of that case has been controverted. The plaintiff claimed that this relation had been duly created between himself and the alledged apprentice, Butler E. Shipman, by indentures of apprenticeship executed by the overseers of the poor for the town of Hardwick, in A. D. 1826, or A. D. 1832. He read in evidence an indenture bearing date June 25th A. D. 1832, and introduced testimony tending to prove, that a similar one was duly executed in 1826, which was lodged in the office of the town clerk for the use of both parties, and had subsequently been lost, or destroyed by accident. The jury were instructed to inquire, whether, at each of the periods aforesaid, the family to which the boy belonged was in such a state of destitution and poverty as would authorise the overseers to act, and whether the alleged indenture of 1826 was in fact executed. In returning a verdict for the plaintiff they have therefore found, that the indenture of A. D. 1826 was executed, and under proper circumstances to give it validity; or that the family were in a condition which.justified the binding by indenture as well in A. D. 1832 as in A. D. 826. In this state of the case, the only subject for consideration is the construction of the statute adopted by the court below.

We think the jury were correctly charged that an order of a justice of the peace, in pursuance of the 20th section of the statute, was not a necessary pre-requisite to a lawful binding by the overseers; and that it was not required that the family should be in a condition of fixed and lasting dependence on the town for support. The 18th section, under which these proceedings were bad, confers a discretionary authority upon the overseers of the poor of the several towns, to biud out as apprentices “ all such children as are chargable to such towns, or who do not employ themselves in some lawful business, and whose parents are unable to maintain them, and do not bind them out in good families.” Here are two cases given in which the overseers are empowered to act; and it is only in the first (when the child is actually chargeable,) that the idea of an order under the 20th section would ever be suggested. That provision was intended to protect the towns against indefinite and unreasonable charges for the support of their poor, but has no application to the exercise of the power in question. And besides, the overseers are authorized to charge their towns, to a limited extent, without such order.

The main object of the 18th section appears to be, to provide for the town a mode of relief from existing burthens, or a means of protection against such as they may reasonably anticipate. It is true, that the probable advantage of the child is also consulted ; but as the power vested in the overseers is a power in derogation of parental rights, and may sometimes operate with great severity upon the prospects and fortunes of the child, it should be confined to those cases which come within the evident intention and policy of the statute. There is no reason to doubt that the overseers were authorized to bind out this child in A. D. 1826. He, with his mother and the other children, then needed, and actually received assistance from the town ; the family was then separated, because the mother had no means of supporting herself or children ; and this boy was received by the plaintiff, under a contract of the overseers to bind him permanently as an apprentice. But as the jury may have thought the execution of the first indenture not sufficiently proved, and may have founded their verdict on the binding in A. D. 1832, it becomes necessary to consider the case with reference to that also. The jury were charged that, as the boy still remained with the plaintiff, where the overseers had placed him in A. D. 1826, the validity of the last indenture would depend on the question, whether his mother was then able and willing to support him. Of her willingness to take him from the plaintiff at that time the case furnishes abundant evidence. We are therefore at liberty to infer, if the jury proceeded upon the last indenture, that they have negatived the latter fact, by finding that she was not of sufficient ability to support him. As the measure of ability here prescribed by the judge was limited to the support of this single child, perhaps a different finding might have been expected. Of this, however, the jury were the proper judges. It was not necessary that the mother or children should then have been actually depend-ant on the town for relief. The overseers retained their power to act, in virtue of the assistance previously furnished, so long as the mother had not resumed the management of her family, had not bound out her children, and continued unable to support them.

It was further objected to the validity of these indentures that the plaintiff was a farmer. The usual definition of apprenticeship at common law is the binding of one to learn a trade. And the business of agriculture alone may not originally have been regarded as a trade for this purpose. No express authority, however, is produced to this effect, and intimations are not wanting to the contrary. I Bl. C. 426. But however this may be, there is no ground .to doubt the proper construction of our statute. Its object, as already alluded to, is more comprehensive than the mere advancement of professional and mechanic arts. And hence we account for the provision for binding out girls as well as boys, under the designation of apprentices, till their respective ages of eighteen and twenty-one years, the former “ to do such work and business as may be suitahle to their circumstances and condition.” This species of apprenticeship, thus indifferently applied to children of both sexes, derives a peculiar definition and import from the statute. It means to secure to the child a suitahle bringing vp, to some lawful business or employment.

Judgment of the county court affirmed.