[PHILADELPHIA, January 22, 1836.] BAILEY against KING. IN ERROR. An apprentice cannot maintain an action against his master to recover compensation for extra work, done by him for the latter, during the term of the apprenticeship: although the work was done upon the express promise of the master to pay for it. ERROR to the Court of Common Pleas for the City and County of Philadelphia, to remove the record of an action in which Robert King, by his next friend, Hermanus King, was plaintiff, and Lydia R. Bailey was defendant. The action was originally instituted before an alderman, who gave judgment in favour of the plaintiff, from which the defendant appealed to the Court of Common Pleas. The plaintiff having filed a declaration in indebitatus assumpsit for work and labour done, the defendant pleaded non assumpsit and payment, &c.; and the cause came on for trial on the 6th of February, 1834. It appeared in evidence, that Robert King, the plaintiff, was an indented apprentice of Mrs. Bailey, the defendant, to learn the art and business of printing: that the defendant had been in the habit of making a pecuniary allowance to her apprentices for all the work done by them beyond a certain amount: that she had promised the plaintiff to give him a certain sum per week, during his good behaviour; and that she had withheld the promised remuneration, on the ground that he had misbehaved himself. The judge, in his charge to the jury, said, "the master of an apprentice is entitled to those earnings which flow from the ordinary occupation and industry of the apprentice, in the way of his business. But if the master promise that in consideration of the apprentice devoting extra time, or performing extraordinary services, which do not interfere with the profits to which the master may be legitimately entitled, he will pay the apprentice for such over or extra service, such promise will be binding on the master, and the apprentice may maintain an action for the breach of it; but the promise must be express, and the master may annex such conditions as he may think proper, and revoke the agreement, upon notice to the apprentice. If, therefore, you believe that the defendant made an unconditional promise to pay the plaintiff for his extra service, and are satisfied that he performed such service, your verdict should be for the plaintiff, for such amount as he has proved to be due to him under the agreement. But, it is alleged by the defendant, that if any agreement was made, it was on condition that the plaintiff should behave himself well. Such a condition would not only be legal, but laudable; and if broken by the appren VOL. I. 15 (Bailey v. King.) tice, he would forfeit his right to recover; though the master should not be permitted, for any slight breach of decorum, to claim a forfeiture for considerable past services. But we cannot agree with the counsel for the plaintiff, that staying out all night contrary to the express direction of the master, and other charges alleged against the plaintiff, are of so trifling a nature, as, if proved, not to incur a forfeiture. The master is guardian of the morals of his apprentice, and is bound to watch over them as he would over those of his children. If, therefore, you believe the agreement was a conditional one, and the condition was not performed by the apprentice, the defendant was right in withholding payment, and the plaintiff should not recover." The plaintiff's counsel excepted to this charge; and having removed the record to this court, assigned for error: 1. That the judge erred in stating to the jury that this action could be maintained against the defendant; she being the mistress, under an indenture of apprenticeship, of the plaintiff below. 2. That the judge erred in admitting in evidence the memorandum book of the plaintiff below, as a book of original entries, to prove work and labour done by him. The first point, only, was insisted upon in the argument. Mr. Owens, for the plaintiff in error. This is an action brought by an apprentice, during the continuance of the apprenticeship, against his master, upon an alleged promise to pay for overwork. The case is of the first impression, and is sanctioned neither by reason nor authority. He cited Abbott on Shipping, p. 439, 440. Peake's N. P. C. 72. Mr. H. Hubbell, contra, argued that there was nothing in the relation between master and apprentice under our laws, which forbade a contract like this. There is a distinction between the case of an apprentice and that of a servant. Altemus v. Ely, (3 Rawle, 305.) The legal existence of the apprentice is not suspended as in the case of a feme covert. The indenture of apprenticeship binds both parties, in respect to the covenants contained in it; but beyond that, it leaves them free agents. He also cited The Commonwealth v. Vanlear, (1 Serg. & R. 1.) Mason v. The Ship Blaireau, (2 Cranch, 270.) The opinion of the court was delivered by GIBSON, C. J.-It is conceded that extra-work, by an apprentice, is not a consideration to raise an implied promise; but it is said to be sufficient to support an express one. But if the master be (Bailey v. King.) chargeable at all, why not on a common count, as in ordinary cases of work and labour done? It may perhaps be, that without an agreement to define the portion of the work which belongs to the master by force of the indentures, there could be no such thing as extra work. It is certain that an apprentice stands not on the ordinary footing of a servant; but for that very reason, it becomes a question of grave concern, whether the enforcement of such an agreement, by legal means, be not forbidden by considerations of policy. In many respects, the master is in the place of a parent. He is treated as such in the statutes to prevent the clandestine marriage of minors; and his relation to the apprentice, if not strictly parental, is at least pupillary. Now these promises are but incitements to industry, and those virtues which are ever found in its train. By the proofs in the cause, it appears that the conditions, by the observance of which the reward was to be gained, were not merely the performance of additional labour, but also regular attendance at church, and the keeping of regular hours at homematters intended to benefit, not the mistress, for she was to pay for the increase of production, but the apprentice himself, in the preservation of his morals, and the improvement of his professional skill. Can it be that these observances may be made the foundation of a legal demand? Declare them to be subjects of judicial cognizance, and all inducements to propose them will cease. No schoolmaster, tutor, or diciplinarian, in whatever profession or pursuit, will recur to premiums for diligence, at the peril of a lawsuit. From the very nature of a premium, the proposer of it is to be the arbiter and awarder of it, where another is not designated. Will it be credited, that the defendant would have held out this salutary incentive to employment, during hours that might have otherwise been given to vicious indulgence, had she thought she was contracting a legal obligation? Had she done so, she would, at the same moment, have ceased to be the mistress of her shop. The case of Mason v. The Ship Blaireau, 2 Cranch, 270, is pressed upon us to show that the master has not a right to the extraordinary carnings of his apprentice; which, however, were explained there, to be such as are produced by his labour, when not employed in his master's service. We have a very different case. Besides, the question had regard to the rights of the apprentice as regulated by the indentures, and not to the validity of a collateral promise, drawn into question by considerations of policy. We are entirely satisfied that, not only public expedience, but justice between the parties, forbids it to be made the foundation of an action. Judgment reversed. [PHILADELPHIA, January 22, 1836.] INGHAM against SNYDER. APPEAL. 1. A fieri facias having been issued and levied on personal property, the plaintiff issued another writ of fieri facias and delivered it to the sheriff, but caused it to be withdrawn before any proceedings were had under it. Held, that this was not an abandonment of the preceding levy. 2. It seems, that the intervention of a term, between the teste and return of judicial process is, not an irregularity. THIS was an appeal by Samuel Yardley, from a decree of the Court of Common Pleas of Bucks County, in the distribution of the proceeds of certain personal property, sold by virtue of a writ of venditioni exponas, in a suit wherein Samuel D. Ingham and John H. Ingham were the plaintiffs and M. H. Snyder was defendant. In the court below there were three claimants of the fund, viz: S. D. and John H. Ingham, the above named plaintiffs, Samuel Yardley, Jr., the appellant, and Stephen Brock, another execution creditor. 1. Samuel D. Ingham and John H. Ingham entered judgment against the defendant, M. H. Snyder, on a bond with warrant of attorney, dated February 12th, 1834, in the penal sum of $723 68, conditioned for the payment of $361 84. The following executions were issued upon this judgment: February 12th, 1835. Fieri facias issued to April term. Real debt $361 84. Interest from February 12th, 1834. Sheriff's return "stayed by order of plaintiffs attorney." Alias fieri facias issued April 28th, to September term, 1834, No. 1; which was returned, "stayed by order of plaintiffs attorney." Pluries fieri facias issued September 8th, 1834, to December term, 1834upon which the sheriff originally returned, "Rec'd $15 on account, and levied upon goods as per inventory, upon file in the sheriff's office, and stayed by plaintiffs attorney." This return was afterwards, on motion, amended so as to read, "Rec'd $15 on account, and levied upon goods as per inventory annexed." The inventory annexed, exhibited house-hold furniture and printing materials. The affidavit filed by the sheriff, upon his application to amend the return of the writ, was as follows: "William Field, sheriff, being duly affirmed according to law, deposes and says, that he had no orders to stay the above exe (Ingham v. Snyder.) cution, unless the defendant paid the interest due upon the judgment, under which the above execution issued, and also obtained from Stephen Brock, another execution creditor of the defendants, an agreement to waive any priority of lien he might obtain. And that the said defendant did not pay the said interest, or obtain the said agreement, contrary to his promise, which was relied upon by the sheriff, and that he the said sheriff returned, levied upon goods as per inventory, on file in the sheriff's office, and stayed by plaintiffs attorney,' by mistake, as the facts did not warrant it; but should have returned the execution levied goods, as per inventory annexed.' Affirmed and subscribed in open court, December 12th, 1834. WILLIAM FIELD, Sheriff. (Signed) CHARLES H. MATHEWS, Proth'y." A second Pluries fieri facias, issued to February term, 1835. This writ was endorsed by the sheriff, "came to hand December 8th, 1834, at seven o'clock." It was afterwards withdrawn from the sheriff by the plaintiff's attorney, and no proceedings had under it. The plaintiff then issued a venditioni exponas to sell goods, returnable to February term, 1835. The præcipe was dated and filed on the 12th of December. There was no endorsement by the sheriff when the venditioni exponas came to hand; the return was, "sold goods to the amount of $502 09;" and it was accompanied with an inventory of the goods levied upon. These were all the proceedings had upon Ingham's judgment, until the question arose as to the distribution of the assets in the sheriff's hands. 2. On the 8th of December, 1834, Samuel Yardley, Jr., entered judgment against the same defendant, on a note dated the 1st day of January, 1834-for the sum of $215 56. On this judgment, a fieri facias issued the same day to February term, 1835. This writ was endorsed "came to hand December 8th, at seven o'clock, twentyfive minutes, A. M;" and the return made by the sheriff, was as follows: "sold goods upon venditioni exponas, No. 9, to this term, to the amount of $502 09." The writ was tested the 8th day of December, 1834; and annexed to it, as returned by the sheriff, was the following order from the plaintiff's attorney. I am instructed by the plaintiff to direct you to levy and sell, without any delay, under the above execution. (Signed) THOMAS ROSs, |