Sixthly, Of settlement by apprenticeship. 3. The parties to the binding. An infant may bind himself apprentice by indenture, be benefit. Arundel to Ferring. Order quashed. Case: The pauper was bound apprentice to one Barber, by indenture, in the usual form (a), having a thirtyshilling stamp, and regularly executed by Barber and the pauper, but not signed by any of the parish officers of Arundel, or assented to by any of the justices; and the question was, whether the signature of the parish officers, and the assent of the justices, were necessary to the validity of this indenture, under the circumstances: The pauper was a cripple settled in Arundel; his mother, in the first instance, applied to Barber, expressing a wish cause it is for his that her son might be placed with him as an apprentice. The pauper, when the indenture was executed, was eighteen years of age, and had been for about a year before, and was then, in the Arundel workhouse, from whence he went to the attorney's office, where the indenture was executed, and there met his father and the parish officer; and it was agreed, between Barber and the parish officer, that the pauper should go into the service of Barber, and that the parish should pay the sum of 401., which was paid accordingly out of the fund belonging to Arundel. The pauper's father was present when the indenture was executed, and it was read over at the time. The pauper had not been previously consulted, and it was not with his good will that he went into the service, but he never expressed to any one any objection to being bound. Barber lived at Patching at the time of the binding, and afterwards removed to Ferring, where the pauper continued with his master, under the indenture, for nearly a year. After hearing Courthope, in support of the order, and D'Oyly, contra, Lord Ellenborough, C. J., said, This indenture must be considered clearly as for the infant's benefit, and not having been vacated, it must be considered as binding, so as to confer a settlement on him by reason of his service under it. This was not the binding of a parish apprentice, it was to a person not residing in the parish; and all that the parish officers did was the advancing of 401. as the premium. As to any supposed controlling influence of the parish officers, I do not see how we can enter upon that subject, nothing being stated concerning it in the case. The influence, however, seems to have been that of the mother; the parish officers make the advance, and the pauper executes the indenture. I think the binding was undoubtedly for his benefit, and therefore valid.—Bayley, J. The pauper executed the deed without objec tion, and there was not any compulsion used at that time. Order of sessions quashed. An infant may bind himself. Infants of be bound. Newbury v. St. Mary's in Reading, Fol. 154; And. 373; 2 Bott, 363. A poor boy, of fourteen years of age, bound himself apprentice, for seven years, to a weaver. It was argued that this was not a binding according to the statute, and therefore did not gain a settlement; and that the indenture was void, because an infant could not bind himself. But by the Court: It did gain him a settlement: for an infant may make an indenture for his own benefit. In Rex v. Saltren, Cald. 444; 1 Bott, 717; where the infancy of the seven years may apprentice was also made an objection to the validity of the binding, Willes, J., said, No age is specified in the 43 Eliz., under which this binding is made, or in the 8 & 9 W. III., which compels the master to receive the apprentice and gives the appeal. Still, it is said that, under 5 Eliz. c. 4, it is necessary that the apprentice should be above ten years of age, and that all the subsequent statutes are in pari materia. But that statute relates only to husbandry, which may require more bodily strength than most other occupations; and that statute cannot be connected with 43 Eliz., which was made for the maintenance of the poor. The present case is that of a female child bound to housewifery. In other instances, the (a) The indenture began, "This indenture witnesseth, that G. Slater, of Arundel, in the county of Sussex, aged nearly eighteen years, of his own free will doth put himself apprentice to C. Barber, of Patching, cordwainer, &c., for four years, &c.; and the said C. Barber, in consideration of the sum of 40l. to him in hand paid, &c." Sixthly, Of legislature has not considered seven as too tender an age. The children of vagrants may at that age be bound out, and the strength and ability of settlement by children, which from seven years of age to ten must vary greatly in point of apprenticeship. fitness, in this respect is matter of consideration and discretion in the magis- 3. The parties to trates. And Ashurst and Buller, Js., agreed, that the statute does not the binding. require any precise age, and that the whole consideration of fitness is in the discretion of the parish officers and the magistrates, who are the proper tribunal for such enquiries. However, a modern statute (28 Geo. III. c. 48, s. 4, ante, 431,) has humanely provided, that children under the age of eight years shall not be bound apprentice to chimney-sweepers (ante, 431.) Rex v. Hipswell, 8 B. & C. 466; 1 M. & R. Mag. Ca. 474. E. Miller was removed from Morpeth to Hipswell. Order confirmed. Case: The pauper's husband, Joseph Miller, son of Jane, the wife of Thomas Salkeld, was, at the age of five years, bound, by Thomas, an apprentice to W. Wright, a chimney-sweeper, by an indenture made the 21st day of May, 1804, between T. S., yeoman, and pauper's husband, his son, and W. Wright, chimney-sweeper. The pauper's husband, of his own free will, and with the consent of his father, bound himself apprentice with W. W., after the manner of an apprentice, to dwell with and serve him, from the date thereof for seven years. And W. W. covenanted with the apprentice, that he would teach him the trade of a chimney-sweeper, which the master used; and also would provide him with meat and clothes. In the case of the master's death, the apprentice might choose a master for himself. The pauper's husband served under it as an apprentice to W. W., during the time specified in the indenture.—Bayley, J. The title of 28 Geo. III. c. 48, is general, "For the better regulation of chimney-sweepers and their apprentices." The preamble states, "that the laws in being, respecting masters and apprentices, are not sufficient to prevent the complicated miseries to which boys employed in climbing chimneys are liable." The 1st sect. empowers parish officers to bind, under certain circumstances. The 2nd sect. contains a regulation applicable to parish apprentices. The 3rd sect. enacts that a particular form of indenture shall be adopted, equally applicable whether the binding is by the parish officers or the parents. It is not, however, necessary to decide whether those clauses apply to all bindings; because the fourth and several other sections clearly extend to all cases of bindings, whether by parish officers or parents, and reach all bindings or contracts of apprenticeship or service. The former branch of the 4th sect. enacts, that all indentures, &c., for binding any boy under eight years of age as an apprentice to a chimney-sweeper, "than is by this act limited," shall be void in law to all intents and purposes. The words," than is by this act limited," are not sensible; but the object of the legislature is manifest, namely, to render void every indenture by which a child under eight years of age is bound apprentice to a chimney-sweeper. If the former part of the section left any doubt upon this subject, it would be removed by the latter part, the meaning of which is perfectly clear; "that every person who shall henceforth have, take, employ, retain, or keep any such boy or boys as or in the nature of an apprentice or apprentices, or servant, employed in the capacity of a climbing-boy or chimney-sweeper as aforesaid, who shall be under the age of eight years as aforesaid, contrary to the tenor and true meaning of this act, and being convicted thereof, as hereinafter mentioned, shall forfeit and pay for every such apprentice or servant so by him or her had, taken, employed, retained, or kept, any sum not exceeding 10l., nor less than 51." But it is said, that void has been sometimes held to mean voidable only; and where the provision is introduced for the benefit of the (a) From J. Holroyd's judgment in Rev. Stoke, 7 B. & C. 571, it seems, that if an indenture is voidable only, and the parties at any time avoid it, no previous service will confer a settlement. This But a boy under eight years of bound apprentice to a chimney age cannot be the sweeper; indenture is void by 28 Geo. 3, will not confer a Sirthly, Of settlement by apprenticeship. 3. The parties to the binding. An adult may bind himself. The master may parties only, such a construction may be right; but where it is introduced for public purposes, to protect those who were incapable of protecting themselves, it should receive its full force and effect. It would be contrary to the spirit of the act, to consider the indenture in this case as voidable only; the consequence is, that no settlement has been acquired by service under it.-Littledale, J. The 4th sect., at it stands, is certainly not very intelligible, nor can it be rendered so, without either inserting or rejecting some words. By either of those means it may. By inserting the words "or otherwise," the sense is rendered complete; by rejecting the words" than is by this act limited," the same result is produced; and the rejection of those words gives effect to the enactment. The 4th sect. thus considered, most clearly comprehends this case, and the indenture is, therefore, void. It is clear, from many of the cases, and from the language of several of the statutes, that a person of the full age of twenty-one may bind himself to serve as an apprentice. But a boy should not be bound to serve a chimneysweeper after the age of sixteen. 28 Geo. III. c. 38, s. 1, (ante, 431.) Rex v. St. Petrox in Dartmouth, 4 T. R. 196. The father of the pauper's also be an infant. husband agreed with Mary Hayne, widow, to bind his son, then aged about eight years, an apprentice to R. H., son of M. H., who was then between the ages of fourteen and fifteen, and was then resident in his mother's house as a part of her family, and had no habitation or business of his own.Lord Kenyon said, it has been properly admitted that this indenture was not absolutely void, but only voidable, on account of the infancy of the parties; and that unless there were some other objection, the pauper is entitled to the benefit of the apprenticeship. The master's condition is immaterial. A female may be bound apprentice by the parish to a day labourer, to learn housewifery; and it will be good, unless it is found to be fraudulent Rex v. St. Margaret's, Lincoln, Burr. S. C. 728; 1 Bott, 713. The binding may be to two masters, to learn two distinct trades. Rex v. Louth, (post, 470.) Anon. T. 9 Anne. If an apprentice be bound to a master who has no have no right to right to take an apprentice, yet a settlement will be gained by service under So the master may take an appren tice (a). A parish indenture was duly executed and allowed, but the master was fraudulently imposed upon the jus tices: This does not prevent a settlement. such an indenture (a). Rex v. Great Sheepy, 8 B. & C. 74; 2 M. & R. 286; 1 M. & R. Mag. Co. 252. Order of removal of E. Burton, &c. from Great Barford to Great Sheepy, confirmed. Case: The pauper was bound apprentice by the parish on the 28th day of April, 1807, (the pauper being then aged seven years, of thereabouts), to George Wilkins, of Deddington, butcher, with him to dwell and serve till he should be twenty-one. The father of the pauper, settlement was at Great Sheepy, had died, and his widow had gone to reside (a) Gyev. Felton, 4 Taunt, 876. In an action for harbouring an apprentice, it was proved that the plaintiff, to whom the boy had been apprenticed, was not twenty-four years of age when the indenture was executed, in 1809; was not a housekeeper, as required by 5 Eliz. c. 4, s. 26; and carried on no trade mentioned in the statute.-Mansfield, C.J., delivered the judgment:-Upon looking into the statute, which is a great and comprehensive law, and probably, at the time, a very wise one, to prevent there being idle persons, it appears that apprentices are obliged to be bound but with respect to the words of sect. 41, on which the present question arises, certainly they at first startle one,-it says, "all indentures, made otherwise than is by this statute appointed, shall be clearly void to all intents and purposes." Many cases have been cited, which say, that whose With indentures, not conformable to the act, shall be only voidable, and not void. If "voidable" was applied to adults only, it would be extremely strange. respect to infants, if applied to them, one can understand it. In all these cases the question arose with respect to infant apprentices; but there has been no case cited where the doctrine, that the contract is voidable and not void, is applied to the case of a master. There is a ground which makes it impossible for the plaintiff to recover, for it is further provided, that every person who shall take an apprentice, contrary to this act, shall forfeit 101., making it not only void, but unlawful; and if such a taking is illegal, it is impossible that the master can recover damages for the violation of a supposed right, originating only in a contract which the law forbids. Rule for nonsuit absolute. Sixthly, Of with her father, George Wilkins, at Deddington; Great Sheepy relieving the widow till the pauper was seven years old. The parish then proposed to the settlement by mother to put the pauper apprentice to Measham cotton works, and told her apprenticeship. they should no longer relieve her unless the pauper was apprenticed. Upon 3. The parties to this the mother requested the officers to bind the pauper to her father, in the binding. order that the boy might not be removed from her. The officers consulted their rector, (a magistrate), and having received his sanction, they and the mother, and Wilkins, met together, and went before the justices without the pauper, for the purpose of binding him. The justices allowed the binding, and the indenture was executed by all parties, and a premium of 61. was paid to Wilkins by the parish officers. There was nothing in the appearance of Wilkins to excite any suspicion that he was an improper person, and there was not any fraud or collusion on the part of the magistrates, or of the parish officers. The pauper continued to dwell with Wilkins, in Deddington, after the execution of the indenture, running on errands, and doing whatever he was bidden to do, till after he was nine years of age, when he left his grandfather, and never afterwards returned to him; but after the binding he continued to go to school by day as he had gone before, and he never knew that he had been bound apprentice, neither did he receive any instruction in the trade of a butcher; and although Wilkins had been a butcher, it did not appear that he ever killed meat after the binding, and he was a man of needy circumstances. The sessions found that the pauper and the grandfather had colluded together and fraudulently imposed the grandfather upon the parish, as a proper master for the child, and on the ground of this fraud alone held that no settlement was gained under the indenture, though they acquitted the parish officers of all participation in the fraud, and found that they had acted bona fide in the matter. -Lord Tenterden. The sessions have found that a fraud was committed, but not by the parish officers. It appears that an imposition was practised on them by the master. If it were competent, after a great lapse of time, to inquire into the fact, whether fraud had been committed in the binding out of an apprentice by any of the parties to the indentures, a vast number of settlements might be disturbed and great expence incurred. The law, by requiring, in the case of a parish apprentice, that the master shall be approved by two justices, has endeavoured to provide that there shall be a proper master, and that every thing shall be done correctly. Where the justices have sanctioned a binding, and there has been no fraud in the parish officers, the safest course for us is to say, that service under such a binding confers a settlement, although the master may have imposed upon the justices. The sessions have mistaken the effect of the fraud found by them. Even supposing that they were right in finding such fraud, still it will not prevent a settlement. Order of sessions quashed. Rex v. Louth, 8 B. & C. 247. An indenture, by which an apprentice was bound for seven years, to serve A. B. for the first four years, and his own father for the last three, to learn two different trades, is valid, and one stamp is sufficient. More fully stated, post, 470. Rex v. Chesterfield, 1 Bott, 625; 2 Salk. 479. A servant was put out by his late master to a barber, who was to teach him to shave and make periwigs, for which he was to have 5l. The servant was no party to the covenants between his master and the barber. And the Court adjudged it not to make a settlement, because it was no service, and the servant was no more than a boarder there for his education, which was no service to make a settlement. Rex v. Cromford, 8 East, 25. The pauper's husband, W. H., went on the 1st of May, 1796, being then 14 years of age, as apprentice to N. Kniveton of Wirksworth, weaver, and continued to serve him as an apprentice for five years. The following indenture was executed by the master and the father of W. H., but not by W. H. himself. "This agreement, made the 1st day of May, 1796, between N. K. weaver, and J. H. miner; the said N. K. shall teach W. H., the son of J. H., the art and mystery of weaving, &c., in the best way he can, for five years from the date above; and that May be bound to two masters suc cessively. The apprentice must be a party to the deed, though an infant. If the binding be by the act of other parties, without his own intervention, no settlement is gained thereby. Sixthly, Of 3. The parties to the binding. N. K. shall find W. H. all utensils belonging to the business; and that settlement by W. H. shall receive of N. K. half of what he earns, and the remainder to apprenticeship. N. K." W. H. did not execute or become a party to any other indenture. -Lord Ellenborough, C. J. Here is neither a binding of the son himself apprentice, nor, if I may so say, of his parent for him, for there is no contract for his serving his master; nothing to bind the son to serve. He might serve in fact, but was under no obligation to do so: he only continued to be taught as long as he pleased, but was not obliged to stay. This was no apprenticeship. The other judges concurred. An indenture is void if the pauper, an adult, (though assenting), is not a party to the deed. By the common no authority to bind his infant son apprentice without his assent; consequently, where executed by the master and the father, but not also by the apprentice, it was held invalid, and gave no settlement. Rex v. Ripon, 9 East, 295. Removal from Ripon to Darlington, and quashed by the sessions. The pauper, being twenty-three years of age, was put apprentice by her father-in-law with her own consent, to one Husbands in Hunton. She was present at the making of the agreement; but the indenture was only executed by the master and her father-in-law, but not by herself: neither was it ever tendered to her for that purpose, though she lived under it with her master for nearly twelve months in Hunton.-—And, without argument,-By the Court, Is it possible to maintain this to be a competent binding of an adult who was no party to the indenture? The relation of master and apprentice did not exist. Rex v. Arnesby, 3 B. § A. 584. Removal from Arnesby to Abthorpe. law, a father has The pauper served some years, under an indenture of apprenticeship in Abthorpe. The indenture stated, that Simcoe, the pauper, son of Samuel Simcoe, glover, with the consent of his father, did put himself apprentice to W. S. framework-knitter, to learn his art, and with him, after the manner of an apprentice, to serve from the 10th day of May, 1802, for the term of an indenture was seven years. It was regular, except that it was executed only by the father of the pauper and the master, and not by the pauper himself.— Abbott, C. J. The words of the 3 W. & M. c. 11, are," that if any person shall be bound an apprentice, by indenture, and inhabit in any town or parish, such binding and inhabitation shall be adjudged a good settlement." Before, therefore, any settlement can be gained, the Court must see that the party is bound by indenture. Now the ordinary mode is, for the party to bind himself, by executing the indenture. Even if he does not do that, still, in the special case of a parish apprentice, he may be bound without such exe cution; but then the binding takes effect by the authority of an act of parliament. This, however, is not the case of a parish apprentice; and unless we were to hold, that it is competent for a father to bind his son apprentice without his assent, (for which no authority can be produced), we must hold this indenture to be invalid. Rex v. Houghton-le-Spring is very different. That was a case of hiring and service, the statutes applicable to which say nothing of the mode in which the contract of hiring is to be made; and there it was held that the deed executed by the servant, and his employment under it, were evidence to shew the terms under which the hiring had been made. And I think that that decision was right. This case, however, stands upon very different grounds. Bayley, J. An infant can only bind himself apprentice by deed; and the question in this case is, whether, according to the words of the act, this party is bound by indenture. The indenture, indeed, purports to bind the son, but the son has not executed it. It is said, however, that he has done that which is tantamount to an execution. If we were to hold that to be so, we should hold, contrary to all principle, that an infant might be bound by his act in pais, without executing the deed. In the case of a parish apprentice there is a special power given by the statute of Elizabeth to parish officers, and there an apprentice may be bound without his assent till he come of age. But a father has, at the common law, no such right. The passage cited from Comyn's Digest is unsupported by any authority. I think, therefore, that the indenture in the present case was invalid, and that no settlement was gained by the service under it.-Holroyd, J. The apprentice did not gain a settlement by the service in this case; for an infant cannot be bound merely by an act in pais. It has been argued, that as he has taken the benefit of the deed by serving under it, he must be bound by it. But that argument is not, as it seems to But a parish ap prentice may be bound without his assent. |