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Sirthlu, Of parties only, such a construction may be right; but where it is introduced settlement by for public purposes, to protect those who were incapable of protecting themapprenticeship. selves, it should receive its full force and effect." It would be contrary to 3. The parties to
the spirit of the act, to consider the indenture in this case as voidable only; the binding. 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. An adult may It is clear, from many of the cases, and from the language of several of bind himself.
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 chimney
sweeper after the age of sirteen. 28 Geo. III. c. 38, s. 1, (nnte, 431.) The master may
Rer 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 w
the benefit of the apprenticeship. The master's 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. material.
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.) Sothe master may Anon. T. 9 Anne. If an apprentice be bound to a master who has no take an appren.
right to take an apprentice, yet a settlement will be gained by service under tice (a).
such an indenture (a). A parish inden- Rex v. Great Sheepy, 8 B. f. C. 74; 2 M. f. R. 286; 1 M. f. R. Mag. Ca. ture was duly 252. Order of removal of E. Burton, &c. from Great Barford to Great allowed, but the Sheepy, confirmed. Case: The pauper was bound apprentice by the parisha master was frau, on the 28th day of April, 1807, (the pauper being then aged seven years, on dulently imposed thereabouts), to George Wilkins, of Deddington, butcher, with bim to dwell tices : This does and serve till he should be twenty-one. The father of the
whose not prevent a settlement was at Great Sheepy, hảd died, and his widow had gone to reside settlement.
condition is im.
have no right to
(a) Gyev. Felton, 4 Taunt, 876. In indentures, not conformable to the aet
, an action for harbouring an apprentice, shall be only voidable, and not void. Li it was proved that the plaintiff, to whom “ voidable” was applied to adults only
, the boy had been apprenticed, was not it would be extremely strange. With twenty-four years of age when the in- respect to infants, if applied to them, ent denture was executed, in 1809; was not can understand it. In all these cases a housekeeper, as required by 5 Eliz. the question arose with respect to infant C. 4, s. 26; and carried on no trade apprentices ; but there has been no case mentioned in the statute.- Mansfield, cited where the doctrine, that the con; C.J., delivered the judgment:- U pon tract is voidable and not void, is applied looking into the statute, which is a great to the case of a master. There is a and comprehensive law, and probably, ground which makes it impossible for the at the time, a very wise one, to prevent plaintiff to recover, for it is further pro. there being idle persons, it appears that vided, that every person who shall take apprentices are obliged to be bound : but
an apprentice, contrary to this act, shall with respect to the words of sect. 41, o forfeit 101., making which the present question arises, cer- unlawful; and if such a taking is illegal, tainly they at first startle one,—it says, it is impossible that the master can " all indentures, made otherwise than is
recover damages for the violation of a by this statute appointed, shall be clearly supposed right, originating only in void to all intents and purposes.” Many contract which the law forbids. Rule cases have been cited, which say, that for nonsuit absolute.
not only void, but
with her father, George Wilkins, at Deddington ; Great Sheepy relieving the Sirthly, of 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 teld 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 bonâ 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.
Rer v. Louth, 8 B. &. C. 247. An indenture, by which an apprentice May be bound to was bound for seven years, to serve A. B. for the first four years, and his two masters sucown 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 the apprentice his late master to a barber, who was to teach him to shave and make peri- must be a purty wigs, for which he was to have 5l. The servant was no party to the cove- though an infant. nants 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 if the binding the 1st of May, 1796, being then 14 years of age, as apprentice to N. Knive- be by the act of ton of Wirksworth, weaver, and continued to serve him as an apprentice for without his own five years. The following indenture was executed by the master and the intervention, no father of W. H., but not by W. H. himself.
settlement is “ This agreement, made the
gained thereby. Ist 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
An indenture is void if the pau
bind bis infant
an indenture was executed by the master and the
Sithly, Of 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. 3. The parties to
-Lord Ellenborough, C. J. Here is neither a binding of the son himself the binding. apprentice, nor, if I may so say, of his parent for him, for there is no con
tract 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.
Rex v. Ripon, 9 East, 295. Removal from Ripon to Darlington, and per, an adult,
quashed by the sessions. The pauper, being twenty-three years of age, was (though assent put apprentice by her father-in-law with her own consent, to one Husbands ing), is not a in Hunton. She was present at the making of the agreement; but the inparty to the deed.
denture 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. By the common 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 son apprentice 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 assent; conse. quently, where of an apprentice, to serve from the 10th day of May, 1802, for the term of
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. father, but not The words of the 3 W. & M. c. 11, are," that if any person shall be bound also by the apprentice, it was
an apprentice, by indenture, and inhabit in any town or parish, such bindheld invalid, and ing and inhabitation shall be adjudged a good settlement.” Before, there
fore, 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 execution; 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 emplos; ment 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 exo But a parish ap- ecuting the deed. In the case of a parish apprentice there is a special power prentice may be
given by the siatute 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
gave no settle. ment.
bound without his assent.
me, available. In Rex v. Cromford, the apprentice had served out his Sixthly, Of time; and in Rex v. Ripon, the indenture was executed by the father of the settlement by apprentice and the master, with her consent, and she also served under it. apprenticeship. Yet in both those cases the indentures were held to be invalid. According 3. The parties to to my recollection the distinction is this: where a party takes the benefit of the binding. a deed, but does not execute it, he will not be liable under it, as for a covenant broken, but he may be liable under the implied contract raised by the acts of benefit which he takes under it. Here the infant was not bound by indenture, and no settlement was gained.-Best, J. It is said, that the service here was tantamount to an execution: but where is that argument to stop? It might go the length of proving that a service for a single day, and that perhaps without proof of his knowledge of the contents of the indenture, would bind the apprentice. The dictum to which we have been referred applies only to land qui sentit commodum sentire debet et onus, et transit terra cum onere; and even there it would be a difficult point to establish, that where a person took possession of the land for a single day, he was bound by all the covenants of a long lease which he had never executed. It seems impossible to consider this as the case of a person bound by indenture : and unless that he be so, he is not within the statute, and has gained no settlement.
The case of Rex v. St. Nicholas, Nottingham, 2 T. R. 726 ; has been thought to be at variance with the doctrine laid down in the above case; but there is this distinction in the circumstances of them, which may reconcile their apparent contradiction. In Rex v. Arnesby, the binding was roluntary, but the indenture was not executed by the apprentice, and therefore invalid: whereas, in Rex v. Nottingham, the binding was by the parish, and the execution by the apprentice was not necessary to make the binding valid. The principal objections, however, were, that the master resided in another county from that in which the justices resided who allowed the indenture, and from which the pauper was bound. It was admitted that the master could not have been compelled, under the 8 & 9 W. III. c. 30, s. 5, to receive the pauper, but he had executed the indenture (a) and received the apprentice, and consequently the objection with respect to him, it was held, could not be supported; and with regard to the other objection, it was observed, that, by the 43 Eliz., the parish officers are to bind out the children “where the justices shall see convenient,” and whether in or out of the parish is not specified. The judgment of Lord Kenyon, therefore, must be taken as applicable to the particular facts of the case, and not as laying down any general principles as applicable alike to all questions of apprenticeship. His Lordship said, If the master does not reject the binding, but assent to it, there is a concurrence of all parties to give validity to the binding, and if no objection be made to the binding before the apprentice has resided forty days, he thereby gains a settlement. Ashurst, J. At all events, there can be no doubt that the parish officers may make such a binding as this, by consent of all parties. Here the master consented by receiving the pauper. The pauper did not object, but lived under the indenture five months. That implies his consent, and it was only on ill-treatment that he applied for his discharge; now, that application is an acknowledgment on his part that the indenture is binding. The pauper having, then, served more than forty days, ought to have the benefit of it.-Grose, J. I consider all the parties consented to the binding. The case of St. Margaret's, Lincoln, Burr. S. C. 728; was considered as an express authority. (6)
(a) In a note to Rer v. Arnesby, 3 apprentice put out by the parish,
"his B. & A. 588, it is said, the master did consent shall be implied if he lives not execute the indenture, and it is so under the binding." "Mr. Gambier, on copied into 4 Burn, 498, 25th edit. ; by the contrary, his clear and correct reference to the report, however, this work, says, “ the adoption of the conwill be found incorrect.
tract is not tantamount to execution,” (6) Mr. Nolan treats this cast as an and quotes Rer v. Arnesby. authority, for he says, speaking of an
4. The execution of the instrument.
4. The Execution of the Instrument. (a) Siathly, Of It will be observed by the cases under the last head, that although, gene
settlement by rally speaking, the parties to the deed become so by executing it, yet there apprenticeship. are some instances in which this ceremony is not essential to the validity of
the instrument. In 1 Nol. P. L. 499, it is said, “ although the master and apprentice must be parties to the deed, yet the settlement is not prevented by the master's neglect to execute, provided the apprentice is bound, and the law is the same whether it be a parish or a voluntary apprentice;" and sereral of the preceding cases are cited ; to which may be added Rex v. Ribchester, 2 il. & S. 135 ; and Rex v. St. Peter's on the Hill, 2 Bott, 495. The pauper was bound an apprentice in St. Peter's in Chester, for seven years, to a carpenter, but the indenture was not executed by the master.—Lee, C. J. It is objected that this indenture is not good, because it is not executed by the master, but that makes no difference if the apprentice himself were bound.
Rex v. Fleet, Cald. 31. The indenture was properly executed by the parish officers, and allowed by two justices, but neither that nor the counterpart were executed by the master. It was contended that as the 8 & 9 W. III. c. 30, s. 5, requires the master to execute a counterpart, a settlement could not be gained unless the master executed. But Lord Mansfield, C. J., said, There is no doubt. The binding was authorised by the 43 Eliz., long before the act requiring a counterpart. But, though the binding was valid, it was doubtful, till that act was made, whether the persons to whom they were bound were compellable to receive them. That statute was therefore made, and it subjects the master, upon his refusal to receive the apprentice, to a penalty; but in no other respect confirms the power of binding, which was already fully established.
Rev v. Lutterworth, 3 B. f. C. 487. Where a parish has united with others for the support of the poor, according to the provisions of 22 Geo. III. c. 83, and a guardian has been appointed, the church wardens and overseers may, nevertheless, bind poor children apprentices, and it is not necessary that the guardian should sign the indentures.
term than seven years does not
ture void, but
See remarks on this statute in
5. Of the Term of Years. (a) 5. Of the term of Although the 5 Eliz. c. 4, declared apprenticeships for less than seven
years void, yet before the repealing act, 54 Geo. III. C. 96, it was held that such contract is voidable only, and not void; and that, therefore, a service under an indenture for a less term than seven years, entitles the apprentice
to a settlement. Binding for a less St. Nicholas v. St. Peter's, Ipswich, 2 Stra. 1066; Burr. S. C. 91;
2 Bott, 493. There was an indenture of apprenticeship for four years ; render an inden- which the apprentice served accordingly. It was urged that this could not
gain a settlement; for the 5 Eliz. enacts, that all indentures otherwise than voidable only.
by that statute shall be clearly void in the law to all intents and purposes ;
and by the same statute, persons dwelling in cities and towns corporate Rex v. Louth, post, 470, 1.
shall take apprentices for seven years at the least ; whereas this master, dwelling in a town corporate, had taken this apprentice only for four years. -By Lord Hardwicke, C. J., and the Court. The indenture is not void, but only voidable at the election of the parties themselves, if they think fit to take advantage of it: and not by a third person. It can only be avoided by the master or servant, who were the parties to it; but not by the parish, who have had the benefit of the service of this apprentice. See also the
observations in Gray v. Cookson, 16 East, 13. A binding of a
St. Petrox, Burr. S. C. 248; 2 Bott, 496. The pauper was parish female till bound a parish apprentice in St. Petrox, until her age of twenty-one, without
the alternative, or till time of marriage, as the statute, 43 Eliz. c. 2, s. 5, binding void.
(ante, 424,) requires. It was urged that she gained no settlement, the bind
not render the
(a) See division of the subject, ante, 423, and Vol. I. tit. Apprentices.