#### AMBROSE K. WYATT, Chairman, &c., upon the representation of SAMUEL MAUDLIN v. MORDECAI MORRIS.

A covenant in on indenture of apprenticeship, under the act of 1769, (Rev. cJi. 69, s. 19,) to teach the apprentice to read and write, according to law, is not an engagement that the apprentice will, or shall learn to read and write. And if the apprentice is incapable of acquiring the art of reading and writing, after proper means have been taken to teach him, the covenant is not broken.

The ease of Clancy v. Overman, ante, vol. 1, page 403, approved.

This was an action of covenant upon an indenture, whereby the relator was, by an order of the County Court, bound apprentice to the defendant, until he, the *109relator, should arrive to the age of twenty-one years, and ■which the defendant covenanted,, among other things, teach him “ to read, write, and cypher, according to law.” The breach assigned was, that the defendant had wholly failed and neglected to teach the said relator to read and write. Pleas, covenants performed; and covenants not broken.

Upon the trial, at Perquimons, on the last Spring Circuit, before his Honor Judge Dick, the relator proved, by-several witnesses, that he had remained in the service of the defendant until his arrival at twenty-one years of age; that he was a young man of ordinary capacity, and that he could neither read nor write. The defendant, on his part, then proved, by one witness, that he had sent the relator to school as much as two quarters in each year, for ten years ; and by another, that he, the witness, went to school with the relator between one and two quarters in each year, for four years, and that the relator went to school after witness had left it; that the relator could read a little, but very indifferently, and witness did not know whether he could write. Upon this testimony, the defendant’s counsel requested the judge to charge the jury, that, if the relator’s inability to read and write arose from incapacity, or from unwillingness to learn, the defendant was entitled to their verdict; but his Honor refused so to instruct the jury, but charged them, “ that as the defendant had entered into a positive and unconditional covenant under his hand and seal to learn the relator to read and write, if the evidence satisfied them that the relator could not read and write at the expiration of his apprenticeship, he was entitled to recover nominal damages, at least. He further charged the jury, that if they believed the defendant’s witnesses, and particularly his first witness, the relator had been sent to school a sufficient length of time to learn to read and write, and was only entitled to recover nominal damages!” The jury returned a verdict for the plaintiff, and assessed the relator’s damages to seventy-five dollars; and the defendant, after an ineffectual motion for a new trial, appealed.

*110Kinney, for the defendant.

Devereux, contra.

Daniel, Judge.

In the indenture of apprenticeship on which this action is brought, the defendant covenanted to teach the apprentice to “ read, write and cypher, according to law;” meaning thereby to bind himself to perform the duty required by the act of 1762, (Rev. ch. 69, sec. 19.) This act, among other things, requires, that the master or mistress “ shall teach, or cause him or her (the apprentice) to be taught to read and write.” The engagement to teach, or cause the apprentice to be taught to read and write, is not an engagement that the apprentice will, or shall learn to read and write. The legislature did not mean to make the master or mistress an insurer of these improvements of the mind of the apprentice. All that is required, is a diligent and faithful exercise of the means necessary to effectuate the objects mentioned in the covenant. If the apprentice is incapacitated to acquire the knowledge of reading and writing, after due means have been taken to teach him, the covenant is not broken. The judge charged the jury, that the covenant was positive and unconditional, to learn the apprentice to read and write, and if, at the end of the apprenticeship, he could not do these things, the covenant was broken, and the relator was entitled to recover, although the apprentice was incapacitated to learn; that the circumstance of incapacity only went to mitigate damages. The case of Clancy v. Overman, (ante, vol. 1,402,) is in conflict with this opinion of the judge, and seems to us to govern this case. We are of opinion, that a new trial should be granted.

Per Curiam. , Judgment reversed.