#### Richard Randall *versus*Francis Rotch *et al.*

It is not competent for a master cooper to send his apprentice abroad on a whaling voyage and receive his earnings on such voyage.

A custom for a master cooper to send his apprentice abroad on a whaling voyage, is bad, being repugnant to the objects and terms of the contract of apprenticeship.

Assumpsit for money had and received, to recover the amount of the plaintiff’s earnings on a whaling voyage, as a mariner on board the ship Hector, of which the defendants were the owners. Plea, the general issue.

At the trial before *Morton*J., it was proved that the plaintiff had performed the voyage, and that by his contract with the defendants, he was to receive one sixty-fifth part of the ship’s earnings. The action was defended by John G. East-on, to whom the defendants had paid the amount of the plaintiff’s share, upon receiving a bond of indemnity. On the part of Easton it was contended, that the plaintiff was not en*111titled to recover, because he was the apprentice of Easton. The indenture was produced, by which it appeared that the plaintiff, being then a minor, was bound, with the consent of his mother, his only surviving parent, an apprentice to Easton, who was “ to instruct or cause him to be instructed ” in the trade of a cooper. The instrument contained other stipulations usually inserted in indentures of apprenticeship. The plaintiff’s mother consented to his performing the voyage in question, and his outfit was furnished by Easton. Easton did not accompany him on the voyage. He became of- age in April 1828.

Easton offered to prove a custom for master coopers to send their apprentices to sea in whaling ships, with the consent of the apprentice, and that the instruction thus obtained in the business of a cooper was highly beneficial. This testimony was objected to, and was ruled out.

The jury were instructed, that the indenture created a personal trust, which could not be delegated ; that the master had no right to send the apprentice on a voyage to sea, and the moment he left the master the contract was dissolved, and the indenture was no defence.

The jury returned a verdict for the plaintiff. If the evidence of the custom was improperly rejected, or if the jury were erroneously instructed, a new trial was to be granted.

Coffin, for the defendants,

insisted that the evidence of the custom ought to have been received ; that this custom did not impair the rights of the apprentice, but resulted to his benefit; and that under this custom there is no assignment of the contract or of the services of the apprentice, but he goes to sea, with the consent of all parties, for better instruction in his trade. A master cooper is indispensable on board a whaling ship. *Reos*v. Stockland, Doug. 70.

The permission granted to the apprentice to perform this voyage, did not dissolve the indenture. A parol leave of absence merely permits the apprentice to depart and remain absent until he shall be recalled by the master ; it cannot dissolve the indenture ; and so long as the relation created by the indenture subsists, the master is entitled to the earnings of the apprentice. If the contract has been violated by Easton, the *112remedy is' on his covenants. He cited the following authorities, from some of which he distinguished the case at bar. Reeve’s Dom. Rel. 344, 345; *St.*1794, c. 63; *Hall*v. Gardner, 1 Mass. R. 172; *Davis*v. Coburn, 8 Mass. R 299; *Commonwealth*v. Hamilton, 6 Mass. R. 273; *Coffin*v. *Bassett,*2 Pick. 357; Co. Lit. 117 *a,*Hargr. note, 161.

*111*Oct. 25th*

*112*Oct. 39th.*

*L. Williams,*for the plaintiff,

cited against the right to as sign an apprentice, *Hall*v. *Gardner, Davis*v. *Coburn,*and *Coffin*v. *Bassett,*above referred to ; and against the supposed custom, *Todd*v. *Reid,*4 Barn. & Ald. 210; *Coventry*v. *Woodhall,*Hob. 134; 2 Stark. Ev. 454, 455.

Shaw C. J.

delivered the opinion of the Court. As it is conceded that the plaintiff performed the voyage, the earnings upon which are claimed in this action, it is clear that he ought to recover, unless a title to the amount has been established by Easton, who claims to hold the amount to his own use, and who has indemnified the defendants. It is claimed by Easton, upon the ground that the plaintiff was his apprentice to learn the trade of a cooper, and that pursuant to a custom in the whale fishery, a master has a right to ship his apprentice and take his earnings.

1. The Court are of opinion, that by force of the contract of apprenticeship, as regulated by the laws of this commonwealth, it is not competent for the master, with whom the apprentice is placed to learn the trade of the master, to send him abroad on a whaling voyage, and receive his earnings. It would be alike contrary to many of the terms and stipulations of the contract itself, and to the nature and purposes of the relation of master and apprentice. It has been repeatedly decided, that in the contract of apprenticeship, whether made by the minor himself, in the cases allowed by law, or by his parent or guardian, or by persons clothed with public authority, a special regard shall be presumed to have been had to the personal character, capacity and qualifications of the master. He is, for the time being and for a considerable period of time, and a most important one to the developement of the character of the apprentice, to stand *in loco parentis.*A high trust and confidence are reposed in the person of the master. All the considerations which go to support the rule that an ap*113prentice cannot be assigned over, are arguments against the right of the master to place the apprentice out of his own control and instruction, for the long period of a whaling voyage, averaging from two to four years, a large portion of the usual period of apprenticeship. It is directly repugnant to the leading stipulation on the part of the master, to instruct the apprentice in his trade. *Hall*v. Gardner, 1 Mass. R. 172 ; *Dams*v. *Coburn,*8 Mass. R. 299 ; *Coffin*v. *Bassett,*2 Pick. 357.1

2. The Court are of opinion that the evidence of custom was rightly rejected. In many cases evidence of custom would be competent, even under such an indenture, to show what the nature of a particular trade is, of what branches and particulars it consists, and how it is usually learned and taught. But here the custom was relied upon, to establish rights and duties directly repugnant to the objects and terms of the contract.2

*Judgment on the verdict.*

1

 See *Ayer*v. Chase, 19 Pick. 556; *Springfield*v. *Heiskell,*2 Yerg. 546; *Commonwealth*v. Leeds, 1 Ashmead, 405; *Hadnut*v. Bullock, 3 Marsh. (Kentucky) R. 300; *Commonwealth*v. Barker, 5 Binney, 423; *Guilderland*v. Knox, 5 Cowen, 363; *James*v. *Le*Roy, 6 Johns. R. 274; *Vickere*v. Pierce, 3 Fairf. 315; *Phelps*v. *Culver,*6 Vermont R. 430; *Commonwealth*v. Edward, 5 Binney, 202; *Commonwealth*v. *Deacon,*6 Serg. & R. 526.

2

 See *Nickerson*v. Easton, post, 110; *Manchester*v. Smith, post, 113.