#### BERRY *v.*WALLACE.

Apprentices — indentures—covenant—statute remedy — consent of guardian — construction— evidence.

The summary proceedings provided by the statute in case of apprentices is cumulative only.

In a suit by a master on an indenture of apprenticeship, complaining that the apprentice wilfully left his service, it is competent to inquire into the treatment of the apprentice, which induced him to leave.

In such case it is competent to inquire what the labor of the apprentice is worth to the master. It is not for the jury to construe the legal effect of a writing.

If the guardian of a minor bind him out and covenant for himself that the apprentice shall perform, the covenant is personal, and he is bound for the damage.

To make a good indenture, the guardian need not covenant for himself, the law makes the minor capable of entering into a covenant of apprenticeship.

Covenant against a guardian on an indenture of apprenticeship for his ward; breach that the apprentice left the plaintiff’s service before his time was out. The case stands on a default for an inquiry of damages.

The covenant read to the jury, was in the usual form, to give six months’ schooling, clothes, &c. In this, the defendant covenanted for the performance of the boy.

Proof was then offered to show that the boy left the service, and of his capacity as a workman.

*658The defendant asked on cross examination, if the plaintiff did not cowhide the boy, &c.

Mason, for the plaintiff,

objected.

Cushing, contra,

cited 22 *O. L.*383.

*Cushing*and *G.*Swan, argued for the plaintiff to the jury,

and

*H. Bacon*and Mason, for the defendant.

By the Court.

The provisions of the statute do not affect the question, the remedy provided for the apprentice, and the summary proceedings under the statute, are cumulative only. In the case before us, the plaintiff complains that his apprentice wrongfully left his service, contrary to the defendant’s covenant. Suppose the plaintiff cowhided the servant, and ordered him away, under circumstances which -no apprentice ought to submit to, would it not be proper to inquire into the facts to mitigate the damages — would a master driving away his apprentice, be entitled to the same compensation as one who treated him kindly, and desired him to stay? Clearly not. The question may be asked.

In the course of the examination, the plaintiff asked of a witness, how productive the labor of the apprentice usually was.

The defendant objected to this as incompetent.

By the Court. It is one way of ascertaining the injury to the plaintiff by the apprentice’s leaving him, to learn what his services were worth — how much he could earn, or how much his labor produced. The question may be asked.

Wright, J.

charged the jury, that the question of liability was not open before them, but if it was, the defendant having covenanted for himself, was liable for the injury. Pie need not so have covenanted to make a good indenture. If he had given his consent, the law made the minor capable of covenanting — but as he chose to engage for himself, he must abide by it. The default admits it and some damages — the only question is the amount.

Verdict and judgment for the plaintiff.