NEW-YORK, Hart V. Hofack. fo as to charge an apprenticefee. In NewYork, no fixed rate of fees for tices in the me dical line. ter part "I promise to ACCOUNT with Eph'm. Hart for his note payable to me for three hundred and feventy-five dollars, dated this day, at fixty days. N. York, 6th February, 1800. David Hofack." From the facts of a cafe reserved, it appeared, that the defendant is a doctor, and alleged that the note was intended as an apprentice-fee for taking the plaintiff's fon. the parent with In fupport of this defence, the defendant called witneffes, who teftified that the plaintiff's fon came to the defendant the lat of the year one thousand seven hundred and ninetytaking appren- nine, and continued with him till the fpring of one thousand eight hundred; that, the fon was confidered in the defendant's shop as a student: that the witness understood from the fon, that he was to be fome time on trial; but the witnefs did not hear him fay how long: that, the defendant's usual apprentice-fee is three hundred and feventy-five dollars; and the witness paid this fee to the defendant, when the witness commenced his ftudies: that, the witness has heard the fon fay he was to pay the defendant a fee of three hundred and feventy-five dollars: that the fon had a ticket for the hofpital, which was obtained for him by the defendant, and is only granted to regular students, and it would have coft five dollars to any other perfon: that the fon had free admiffion to the defendant's library, and used his books: that feveral phyficians fay it is not usual to return an apprentice-fee, and the witnefs knew one instance in which a return of the fee was refused : that one of the witneffes gave the defendant only one hundred and fifty dollars as a fee, owing to particular circumftances that, the fon, after being about three months with the defendant, faid he had been upon trial, but that he was now a regular student: that the fon was a boy of about fourteen years of age that, the defendant's ufual term of apprenticefhip is three years; but there is no particular period fixed by agreement. Elias Noah, on the part of the plaintiff, depofed, that he was very intimate in the plaintiff's family that, the defendant, by letter, which the witnefs faw and read, informed the plaintiff he had occafion for money, and applied to the plaintiff to borrow his note. Upon this, the plaintiff made and delivered to the defendant the note above mentioned, and the defendant figned and delivered the receipt above mentioned : the witness always confidered the tranfaction as a loan by the May 1803. Hart v, Hofack. plaintiff to the defendant, and nothing else: that the witnefs NEW-YORK, feveral times met with the defendant in the plaintiff's family: that the defendant was very folicitous to have the plaintiff's fon come and ftudy phyfic with him that the defendant ufed much perfuafion for this purpose, both with the plaintiff and with his fon: that, finally the plaintiff and his fon confented that the son should study phyfic with the defendant : that it was exprefsly agreed between the plaintiff and the defendant, that the plaintiff's fon, if he went to ftudy phyfic with the defendant, should have a right to quit the defendant whenever the plaintiff's fon pleased to do fo; that the fon, after this agreement, went to ftudy phyfic with the defendant : that the fon attended the defendant's fhop but irregularly: that the son, after being fome months with the defendant, adopted an opinion, that he could not, from the acquaintance he had formed in New-York, purfue his ftudies as closely as he ought to; and thereupon he left the defendant, and went to Europe: that, the witness always underflood that the fon was merely on trial, with the defendant. The Judge charged, that this cafe did not depend on any general custom of the faculty, or of this defendant, in relation to the fee in queftion; but on the particular agreement; that the defendant had, no doubt, a right to fix what price he thought proper for his ftudents; but, whatever might be his eftablished fee, he was bound by any agreement he had made; that, on this fubject, little dependence ought to be placed on the declarations of the plaintiff's fon, who was no more than fourteen years of age; particularly, as he must be confidered as under the controul of his father. Neither ought much stress, in his opinion, be laid upon the circumftance of the defendant's procuring the fon a ticket for the hofpital; as his father, or the defendant might have thought it proper to procure the fon a ticket, although he was merely on trial with the defendant: that if the jury believed that the fon had gone to ftudy with the defendant on trial; that the time for trial had elapsed; and that afterwards, the plaintiff and his fon had elected, that the fon fhould continue and ferve his apprenticeship with the defendant; then it would be their duty to find a verdict for the defendant; but if they believed, that the fon was with the defendant on trial, and that, by virtue of an agreement between the plaintiff and NEW-YORK, defendant, the fon was entitled to leave the defendant whenMay 1803. ever the fon disliked to remain with the defendant; then it would be their duty to find a verdict for the plaintiff; deducting, however, from the damages a reasonable allowance for the time the fon was with the defendant. Hart V. Hofack. The jury found a verdict for the defendant. On the above facts, it was now moved, on the part of the plaintiff, to fet it afide, as contrary to evidence. Troup for the plaintiff. The action was to recover money lent the defence, that it was given as an apprentice-fee. The question then is, whether from the evidence, it was a loan or a payment. That it was the former, is manifeft from the evidence of Noah, who faw the defendant's letter, afking to borrow money. If the money was a payment, it was fingular a request should be made to have it lent. It is not ufual for creditors to borrow their debts due, and give accountable receipts for the amount. The agreement on which the plaintiff's fon went, is expressly proved; he was to leave the defendant when he pleased; and the receipt was therefore worded as an accountable one; because, if the son did not continue to complete his ftudies, only a proportionable fum was to be paid. The plaintiff did not contend the three hundred and feventy-five dollars were to be recovered without deduction; but that the defendant was not entitled to the whole, against his agreement and his receipt. No argument could be drawn from the election of the fon, had it been clearly established: he was only fourteen years of age, and could not elect without the concurrence, and under the controul of his father. As to the defendant's witneffes, their testimony went to facts perfectly immaterial: the ground of the fuit was the agreement; by that, no time was specified for electing to leave the defendant: whenever the election was made, and the plaintiff's fon did leave the defendant, he was, upon his receipt, to account; and, for fo much of the ufual time of studying under the tuition of the defendant as was unexpired, a deduction was to be made: thus, and thus only, the contract in evidence, and the receipt could be confiftently explained. Pendleton for the defendant. The application can fucceed only on two grounds; either that the verdict is against the weight of evidence, or against a rule of law arifing out of the May 1803. Hart V. Hofack. The research facts. To decide on the first, the court must affume the of- NEW-YORK, fice of jurors, and this they never do, where there is evidence on both fides, unless it is by much the strongest on one fide. The jury here have decided on the credibility of the witnesses; the court will not interfere with their province in that refpect, to give another opportunity to weigh the credit of the fame witneffes. This was never done, but when the teftimony was by foreign witneffes, and taken abroad: then the court would do it to procure evidence of their credibility, because the jury must be ignorant of it; therefore, knowing only the credit of their own countrymen, they could not weigh it with that of foreigners, refiding abroad.* The note for three es of the report hundred and feventy-five dollars, made by the plaintiff when er do not afford his fon was upon trial, was the reason of the accountable this diftinction. receipt. It was not an engagement to repay a loan, but to be accountable on a contingency, whether the fon would be a ftudent or not; there was no precife time for this: the fon was on trial; when he chofe to be a ftudent, the trial terminated, the account was complied with, and there was to be no return; for the bill was fairly due. The dates of the tranfactions prove this; and afterwards the fon is found to be a ftudent, by having a certificate gratis, which none but students could obtain without paying five dollars. The court muft fuppofe him a ftudent, or that the defendant had been guilty of a fraud, by figning a falfe certificate. Noah fays the fon was to determine whether he would be a student or not, and the other witneffes fay the fon did elect to beNoah fwears pofitively to a fact he could not pofitively know, the deftruction or lofs of the letter, in which the defendant applied to the plaintiff, to borrow money and it is very fingular he fhould apply to borrow the very fum due him for a fee, and that the application fhould be to the very man whofe fon was a student with him, in preference to all others. The reason why the receipt was an accountable one, was not because no time was fixed for the plaintiff's fon to make an election, but because the defendant was not to be accountable after the trial had. come one. Hoffman, on the fame fide. The conftruction, mentioned by the counsel affociated with me, is that which the jury put on the bill and receipt. A pro rata accountability, for one or two years, when it might please the fon of the plaintiff to May 1803. NEW-YORK, leave the defendant, was abfurd, in the case of either a stua dent of law or phyfic. If, however, the inference from the facts was doubtful, the jury had drawn a conclufion which, according to legal principles, must be decifive. Hart V. Hofack. Newton v. part of an apprentice-fee was ordered to be repaid, the maf Harrison in reply. The plaintiff is contending for his fair and just rights: if injuftice has been done, this court will interpose, and grant a new trial. It is admitted, that there was a period when the whole fee was not due; that is in evidence: there is no proof that at the end of four or five months the defendant could erect himself into a judge, and think himself entitled to the fame fee as if the plaintiff's fon had ftaid with him four or five years. The principle infifted on by the plaintiff is one that is found in every volume of law. Chancery is full of decifions of apportionment of apprentice fees, which depend entirely on the quantum of fervices muRoufe, 1 Vern. tually rendered.* This is the conftant rule of acting, unless 100 guineas, fome custom or ufage of trade to the contrary, be established. Of this there is no kind of evidence: the defendant cannot make and set up one for himself. On this point, the defendter having died ant's witneffes speak only as to hearsay, and give one folitary within 3 weeks The ufage then, articles, though is out of the queftion; and the question depends on the athey expressly mentioned £60 greement; of this, Noah's teftimony is conclufive: it is alfo only fhould be uncontradicted; and from his fituation, connected with his mafter died acquaintance in the family, it is highly probable he knew all within a year. the circumftances of the contract better than any one else; Webb, 2 Bro. nor could any one but Noah prove the lofs of the letter, askCh. Rep. 80, ing a loan of money. He had seen and read the letter ; and Kenyon, then is it to be supposed the plaintiff would not have produced the letter, if he had been able? As he was not, and could not prove the lofs himself, Noah only could do it; who, like all other third perfons in fimilar fituations, fwears to his firm belief. A belief warranted by reafon, and the queftion I have just asked. The agreement on which the fon was taken, and the note given, is the only evidence that can affect the caufe. The defendant's witneffes neither do, nor can speak to this. The certificate, ufe of the defendant's books, &c. are nothing to the purpofe. We find the defendant acting with peculiar folicitude to get the plaintiff's fon as a student; and the extraordinary liberality of the defendant's agreement, might not, if taken as the refult of his anxious entreaty, be after figning the inftance of a custom, as it has been called. returned, if the But fee Hale v. where Lord master of the Rolls, faid, the decifion above had carried the jurifdiction as far as could be. |