Nickerson v. Howard

19 Johns. 113 | N.Y. Sup. Ct. | 1821

Platt, J.

delivered the opinion of the Court. Whether such an indenture of apprenticeship is strictly assignable, is a question which, I think, does not necessarily arise in this case.- The defendant, Ward B. Howard, gave the note in question to the plaintiff^ as the price of an assignment of &tt apprentice by the plaintiff to one Éveritt Howard. The' consideration which thé déferidant received for giving this' note, must be presumed to have been paid to him by Everiti Howard, for whose benefit it was understood to have been' given. Whether the assignment was valid or not, it mudt he presumed, that the note was made at-the request of Éveritt Howard¡ and as between him and the defendant, it can- never be material' whether the assignment of thé indenture transferred any interest or not. The validity of thé assignment-, I think, can be questioned only by Everiti Howard, the purchaser, iri a suit to recover back the price', for a consideration that has failed,- or in a suit Or other proceedings on behalf of the indented apprenticed

On the question, whether such an apprentice may he assigned,- the rule Of law does riot appear to be settled with só much precision as might be expected. (Reeve’s Dom. Rel. 344, 345, 346.) In the case between the parishes of Caistler and Eccles, (1 Ld. Raym. 683.) Holt, Ch. J. said, “ though it Be true that an assignment of a poor child, bound as an apprentice, would nbt pas's arr- interest in- the apprentice ; ye't it is a good contract, that the apprentice should serve the second master during the time, though the Words aré grant and assign. Like the case of assigning a bon'd, though it is not' assignable in point- of interest, yet it is a covenant that the assignee shall receive the money to his- own Use.” If amounts- to a' contract between the two masters, that- the* child should serve the latter. So, that the assignment is-good by way of covenant,- though not as an assignment,* to pass an interest. (1 Salk. 68. 3 Viner, Apprentice, F. 2 Wils. 96.) In the case of The King v. The Inhabitants of Stockland, (Doug. 70.) Lord Mansfield said,' “' though arv apprentice is not strictly assignable,- nor' transmissible, yet if he continue with- the consent of alt parties, and- his own1,* it is as continuation of the apprenticeship.*” Noii constat, in' this ease,- but that thé'apprentice has voluntarily continued-' Co1 serve his new master, by consent of all parties. But if She- apprentice has refused to serve bis new master, then1 Se assignee has his- remedy against the first master,; on1 his5 assignment, as a covenant for the service. It appears to me, ■therefore, that .even between the first and second master, the consideration for which this note was given, has not failed, The plaintiff is entitled to judgment according to ffie verdict.

Judgment for the plaintiff,