(2) The age of the child is commonly inserted in the indenture. As a general rule, the master would not be allowed to show that the age inserted was not the true age, though the apprentice would. (3) The master has a right to the custody of the apprentice, and may resort to a habeas corpus as against one wrongly depriving him of it,3 though the court will in some cases set the apprentice free and leave the master to his remedy by action. (4) The master is entitled to the earnings of the apprentice, but not to such as are obtained from extraordinary service for others, wholly beyond the line of his duties; as, for example, salvage money," or bounty, or prize money. A master may waive this right by allowing him freely to depart from his service. The apprentice could not recover from his master, even upon a promise to pay him, for extra work which his indentures bound him to perform. Such a promise would be without consideration.9 (5) The master may, in the way of discipline, correct the servant in a moderate manner.10 (6) The relation is to some extent purely personal. Thus, the agreement to teach ends with the life of the master, and does not bind his representatives. The master is only bound to use reasonable diligence in giving instruction.11 If he fails to do what the law requires of him, the apprentice may sue for damages.12 (7) The master is bound to pay for necessary medical attendance in case of the sickness of the apprentice.18 (8) The master has no right to remove the apprentice to another State, unless the removal is provided for in the indenture, or arises from the nature of the contract, as in the case of an apprentice to serve at sea.14 But the courts of the State into which the apprentice is removed will, in their discretion, refuse, on habeas corpus, to take the apprentice from the master.15 When the master is sued for a removal, he may show in his defence that the plaintiff assented.16 It is in general true that an apprenticeship made in another State is not obligatory. So far as apprenticeship creates a status or

10 Commonwealth v. Baird, 1 Ashm. (Pa.) 267.

11 Wright v. Brown, 5 Md. 37.

12 Adams v. Miller, 1 Cranch, Cir. Ct. 5.

18 Easley v. Craddock, 4 Rand. (Va.) 423.

14 Commonwealth v. Edwards, 6 Binn. (Pa.) 202; Commonwealth v. Deacon, 6 Serg. & R. 526; Coffin v. Bassett, 2 Pick. 357.

15 Commonwealth v. Hamilton, 6 Mass. 273.

16 Burden v. Skinner, 3 Day, 126.

condition, it is local, depending on grounds of local policy.1 (9) The master has, in general, no right to assign the apprentice to another. The reason is, that the relation creates a personal trust.2 A note given for an assignment would, therefore, have no valid consideration.3 An attempt to assign, according to some authorities, may, however, as between the assignor and assignee, create a valid contract whereby the one may have a cause of action against the other. If the apprentice consented to serve the new master, he might gain a settlement in the place where the latter resided. So if the master die, the apprentice cannot be assigned by his executors.5 In some States an apprentice bound by the overseers of the poor may be assigned without his consent.6

Rights of the master as to third persons. The principal points that might be presented under this head are, the right of the master to sue third persons for loss of service caused, e. g., by seducing, enticing, or harboring the apprentice, or to sue for his wages. Two classes of questions may arise: one, as to his right to sue the third person on a contract, and the other, for a tort.

As to actions on contract, it is laid down in some of the cases that the master can hold a third person for the wages of an apprentice earned in the service of such third person, whether he knew of the existence of the apprenticeship or not. Where, however, the action is for enticing away or harboring the apprentice, it must appear that the enticer knew of the relation.8

As between the father and the master. The right of the father to sue the master is in general derived from the covenants in the indenture, as, for example, that the master will pay wages.9 In like manner, if the father enter into a covenant for the good conduct of the child, he will be personally liable. This is but a common instance of A. undertaking that B. shall do a particular thing. In such a case A. is responsible, although

1 Hines v. Howes, 13 Met. 80; Commonwealth v. Edwards, 6 Binn. 202; Commonwealth v. Deacon, 6 Serg. & R. 526; United States v. Scholfield, 1 Cranch, Cir. Ct. 255.

2 The cases to this effect are numerous. Tucker v. Magee, 18 Ala. 99; Huffman v. Rout, 2 Metc. (Ky.) 50; Hudnut v. Bullock, 3 A. K. Marsh (Ky.), 299; Hall v. Gardner, 1 Mass. 172; Davis v. Coburn, 8 Id. 299; Handy v. Brown, 1 Cranch, Cir. Ct. 610.

8 Allison v. Norwood, Busbee, N. C. Law, 414.

4 Nickerson v. Howard, 19 Johns. 113; Guilderland v. Knox, Cow. 363.

6 Commonwealth v. King, 4 Serg. & R. 109.

6 So in Vermont, Phelps v. Culver, 6 Vt. 430.

7 James v. LeRoy, 6 Johns. 274. But see Ayer v. Chase, 19 Pick. 556; Bardwell v. Purrington, 107 Mass. 419.

8 Stuart v. Simpson, 1 Wend. 376.

9 Caden v. Farwell, 98 Mass. 137.

he has no available mode of compelling B. to do the thing in question.1

As between the father and the apprentice, if the relation has been legally constituted, the right to custody, discipline, wages, etc., is lost. He cannot sue for the seduction of a daughter, for he is no longer entitled to her services. It may be added that the status of the apprentice is fixed by that of the master. He cannot change his domicile by his own act.3

II. Dissolution. The apprenticeship, in the absence of an opposing statute, can be dissolved by mutual consent. It may also be dissolved by act of the government, as, for example, by an enlistment in the army. The employment by the government constitutes a personal contract with the soldier, and a prior apprenticeship must give way. Statutes frequently provide a mode of dissolution by the medium of a resort to the action of magistrates or of a court.5

III. Compulsory apprenticeship under the Poor Laws.-The system of taking charge of pauper or destitute children is extensively prevalent in this country. The methods of taking charge of such children are various. In some States, courts of probate have charge of them."

In one State a Court of Chancery has charge of such cases.7 In other States it is the overseers of the poor. In New York various modes prevail, depending upon special and local statutes, conferring the authority upon orphan asylums, juvenile asylums, reformatories, etc. In some instances, institutions of this kind have statutory power under certain regulations to bind out children resident in New York in other States of the Union. This kind of legislation has been decided to be valid as to the Juvenile Asylum in the city of New York.8

The power conceded in New York to reformatory societies to apprentice pauper and truant children particularly to employers in other States in the agricultural districts, has proved highly beneficent in its practical workings. It is for the interest of the public that the statute should receive a liberal construction in favor of the institution acting in good faith for the welfare of the child.

1 Mead v. Billings, 10 Johns. 99; Bull . Follett, 5 Cow. 170; Woodrow v. Coleman, 1 Cranch, Cir. Ct. 171.

2 Dain v. Wycoff, 7 N. Y. 191. Maddox v. State, 32 Ind. 111.

✦ Johnson v. Dodd, 56 N. Y. 76, 81.

5 See in New York Laws of 1871, ch. 934, § 4.

Spears v. Snell, 74 N. C. 210; Ballerger v. McLain, 54 Ga. 159; Cockran v. State, 46 Ala. 714.

7 Howry v. Calloway, 48 Miss. 587.

8 Matter of Forsyth, 66 How. Pr. 180; People v. New York Juvenile Asylum, 2 N. Y. Supreme Ct. R. (T. & C.) 475; affirmed in 59 N. Y. 629.

DIVISION III.- The Law of Master and Servant, as arising out of Contract.

Under this general head will be considered the ordinary case of master and servant, as well as acts of service where the technical relation of "master and servant" does not exist.

SECTION I. The Relation itself. It is first necessary to distinguish the relation of master and servant from other relations wherein acts of service are rendered.

(1) The great and fundamental distinction between a servant and an agent is, that the former is principally employed to do an act for the employer, not resulting in a contract between the master and a third person, while the main office of an agent is to make such contract. Servants may make contracts incidentally, while agents may in the same way render acts of service. The principal distinction between them, however, is as above stated.

(2) It is important to distinguish between a servant and a contractor. Here there is not necessarily any difference in the thing to be done; it is in the mode of doing it. Thus, a canal company might excavate the bed of its canal either by employing servants or contractors. The leading distinction is, that the contractor follows an independent employment, and works for the particular person employing him as he would for any other person having work of a similar kind to be done. As a rule, a contractor only stipulates that he will accomplish a certain result or end, and the employer cannot control the mode of attaining it, while the master of a servant can direct the means as well as the end.1 Still, there may be cases where a person usually exercising an independent employment may for the time being act as a servant. In this case, if the course of conduct is in accord with the usual action of servants, the contractor will be treated for legal purposes

as a servant.

(3) It may be conceded in a particular case that a person is a servant, and yet it may be doubtful to which of two supposable masters he is attached as servant. Thus, it has been decreed to be a difficult point to determine mastership in a case where A. supplied a pair of horses and a driver to B., who owned a carriage, and the driver, while driving the horses and carriage in which B. was at the time, by negligence injured C. The solution of the difficulty is found by ascertaining who selected the driver, who paid him his wages, and under whose control he regularly was while acting in that capacity. A., in the case supposed, would

1 See Forsyth v. Hooper, 11 Allen, 419.

accordingly be his master. In general, one may be in the employment of one person, and by his consent render acts of service to another without becoming in any legal sense the servant of the latter.

(4) There is a distinction between the relation of master and servant and that of one who simply performs acts of service for another. The expression "an act of service" may have a broad meaning, and include many cases not embraced in the strict relation of master and servant. Thus, a physician in compounding a prescription, or an attorney in drawing a deed, renders an act of service, though the facts scarcely create the ordinary relation of master and servant. It is not easy to draw the line with exactness. Some leading elements in difficult cases may be noted. An important circumstance is that the alleged servant performs a scries of acts of service for the same person of the same general kind. Another leading fact is that the alleged servant renders services exclusively to a particular employer. Thus, if one should have a horse shod by a blacksmith on a single occasion, it would not be a case of master and servant; yet if the man gave his entire time for a fixed period to shoeing an employer's horses, the relation thus constituted might be close to that of master and servant.

Again, if one who was alleged to be a servant had a large discretion in the mode of performing his duties, as, for example, if he followed a profession,- he could not be properly regarded as a servant in the ordinary meaning of the word.

The question whether one is in a legal sense a servant will become highly important when it is sought to hold an alleged master responsible for the negligent acts of the supposed servant, under the rule of respondeat superior, to be hereafter considered.

(5) The distinction between a servant and a partner is a question which frequently arises in commercial law, where it is claimed that one apparently a servant has become a partner with his employer on the ground that he has participated in the profits of the business. The general rule is that if the relation is one usually occupied by a servant, its nature is not changed by the fact that the employee is paid for his services from the profits. The details of this point belong to the law of partnership.

(6) An interesting question sometimes arises, whether a servant having a specific duty assigned to him, can, by employing a sub-servant or associate to aid him, without the knowledge or assent of his employer, render the latter liable for the negligent acts of the sub-servant, injurious to third persons. The correct principle would seem to be, that, if the act to be done would