Allison v. Norwood, 44 N.C. 414, 1 Busb. 414 (1853)

Aug. 1853 · Supreme Court of North Carolina

44 N.C. 414, 1 Busb. 414

R. W. ALLISON et al. ADMRS. vs. L. W. NORWOOD.

It is tlie duty of tlie County Court, in binding out an apprentice, to select as master a person who will, in their judgment, faithfully discharge the duty which he assumes; and the relation of the master to the apprentice is one of personal trust and confidence. Hence, upon the death of the master, no right vests in his personal representative; and lienee also, the master cannot assign the apprentice or his services, because inconsistent with tlie nature of the trust, and against tlie policy of the law. Therefore where the consideration of a promissory note was such an assignment, it was held that the note was void.

(The cases of Sharpe v. Farmer, 4 Dev. & Bat. 122; Goodhead v. Wells, 2 Dev. & Bat. 476; Overman v. Clemmons ibid, 185; and Blythe v. Lovinggood, 2 Ire. 20, cited and approved.)

This was an action of debt upon a promissory note of the defendant for two hundred dollars, due twelve months after date, and dated 4th October, 1838. Pleas — general issue — fraud— want of. consideration in the note — consideration against the policy of the law — statute of limitations.

On the trial, before his Honor Judge Manlt, at Mecklenburg, at Fall Term, 1851, a letter of the defendant, dated 11th November, 1843, was exhibited, which promised to pay the note declared on in the next year. There was no evidence of any renewal of this promise until after the death of the plaintiff’s intestate, and after the institution of this suit. When the sheriff served the writ upon the defendant, he said he would pay the debt, if the sheriff would take Alabama money, and if he would let him go, he would remit the money from Alabama as soon as he reached there, stating at the same time it was a just debt. It appeared that the defendant, soon after the date of the note, and before it fell due, removed to the State of Alabama, and had continued to reside there since. A deposition was then introduced on the part of the defendant, to show that the consideration of the note was an assignment of the unexpired time of the defendant’s service as an apprentice. This evidence was objected to by the plaintiff, on the ground that in said deposition was disclosed the fact that there was an instrument of writing setting forth the consideration of the note, and it was not competent to prove it except by that writing. The objection was overruled by his Honor, and the deposition read, excluding that portion relating to said writing. It appears from the deposition1, that the deponent, McKi cable, a resident of Alabama, was, in North Carolina, apprenticed to the plaintiff’s intestate, to be taught the carpenter’s trade ; that at the date of the note sued on, he had eighteen months or two years to serve, and that he was by said intestate, for the amount of said note, assigned and transferred to the defendant, with whom he went to Alabama, and whom he served there the residue of his term of apprenticeship. And the defendant offered in evidence the record of Mecklenburg County Court showing the deed of indenture of said apprentice to the plaintiff’s intestate.

His Honor was of opinion that there was no sufficient promise to relieve the note from the operation of the statute of limitations — that the Act of 1848-49 did not retroact, and was not therefore applicable ,• and he was also of opinion that the consideration, supposing it to be proved, was against the policy of the law, and therefore illegal; which opinion having been intimated to counsel, the plaintiff in deference thereto, submitted to a judgment of nonsuit, and appealed to the Supreme Court.

Wilson, for the plaintiffs.

Hutchinson, for the defendant.

Battle, J.

There is one ground of objection to the plaintiff’s action which is fatal to it, and which renders it altogether unnecessary for us to consider any other. The consideration for the note sued upon was the assignment by the plaintiff’s intestate to the defendant, of the apprentice Hugh McKimble. The facts of the assignment and the consideration for the note are shown by the deposition of the apprentice himself, and being independent facts, may well be proved by that testimony, no matter what may have been the contents of the written instrument given by the intestate to the defendant. We hold such consideration to be against the policy of the law, and, therefore, the note given upon it void. By the statute contained in the 5th chapter of the Revised Statutes, entitled “ An Act concerning apprentices,” theseveral County Courts in the State are empowered, and it is made their duty to bind out as apprentices, certain orphan and other children to “some tradesman, merchant, mariner or other person approved by the Court ” — every such male child to be bound until he shall attain the age of twenty-one years, and every female until her age of eighteen years.. The statute then goes on to prescribe the manner in which the binding shall be done, the reciprocal duties of the masters and apprentices, and their respective remedies for the violation of such duties. The object sought to be accomplished by the statute is manifest, and it is one of the greatest importance. It is no less than that the orphans • shall be comfortably and suitably reared and educated during their minority, and in the meantime be .taught some useful trade or employment, in order that when they become of age, they may be able to provide properly for themselves and their families, should they have any, and to perform the duties which may devolve upon them as individuals and citizens. To compensate the masters for what they are required to do for their apprentices, they are intrusted with certain powers over them, and are entitled to their services. The manner in which this relation is created, and the important objects which it has in view, show clearly that it is a personal trust. Indeed it was so decided in the case Goodbread v. Wells, 2 Dev. & Bat. Rep. 476, where it was held that upon the death of the master, the relation necessarily ceased, and that, consequently, the personal representation of the deceased had no interest in the apprentice. The law then will not itself make an assignment of the apprentice : — will it permit the master to do so ? We cannot see how it can, without taking indirectly from the Justices of the County Courts the power which it expressly confers, of exercising their judgments in the selection of suitable and proper masters — such as they can approve. See Davis v. Coburn, 8 Mass. Rep. 296. If, then, it be against law for a master to assign over to another person an apprentice who has been bound to him by the County Court, a contract, founded upon the consideration of such an assignment, must necessarily be illegal and void. Sharpe v. Fanner, 4 Dev. & Bat. Rep. 122; Blythe v. Lovinggood, 2 Ire. Rep. 20 ; Overman v. Clemmons, 2 Dev. & Bat. Rep. 185, and Davis v. Coburn, ubi supra.

The plaintiff’s counsel has referred us to the case of Nickerson v. Howard, 19 John. Rep. 113, which appears to be in opposition to the above conclusion. In that case the defendant gave to the plaintiff a promissory note as the price or consideration for the assignment of an apprentice to one E. at his request; aud it was held that, in an action on the note, the defendant could not set up as a defence, that the assignment was not valid — that its validity could only be questioned in a suit by E. to recover back the price on a failure of consideration, or in a suit or proceeding in behalf of the apprentice. The Court seemed inclined to hold further that, although an indented apprentice is not assignable or transmissible, yet the assignment as between the old and the new master would be valid as a covenant for the services of the apprentice ; and if the apprentice continues to serve his new masfer, there would be no failure of the consideration of the assignment. Now if the non-assignability of an apprentice was based, like that of a bond at common law, upon an objection of a technical and not a substantial character, we might be disposed to agree with the case cited. -But the objection in this State, however it may be in New York, is of the most substantial kind : it is an objection against permitting the power of selecting and approving a fit person to have the charge of an apprentice, to be taken from the Justices holding the County Court, upon whom it is expressly conferred by statute, and given to an individual, even though that individual may be a master formerly appointed by such Justices. The policy of such a statute is too necessary for the accomplishment of the purposes it has in view, (and which are highly important both to the apprentice and the State,) to permit it to be contravened by a contract made in violation of its provisions; and we are gratified to find ourselves supported in upholding it by so respectable an authority as the Supreme Court of Massachusetts.

Per Curiam. Judgment affirmed.