12. Of serving Sixthly, Of contract of yearly hiring. The pauper served under that contract as a sersettlement by vant, and not under the indenture as an apprentice; and very different duties apprenticeship. result, on both sides, from these different descriptions of service. Rer v. Ashby-de-la-Zouch, is strongly in point with the present. The want of knowledge in the second master, and the hiring of the pauper as a servant, are common to both cases; and those facts distinguish this from most of the cases cited in argument. For these reasons, we are of opinion, that the service with the second master was not a service under the indenture, and, consequently, that the order of sessions is right. different masters. Fifthly-The Apprentice must be employed in the capacity of an Apprentice, and under the original Indenture.(a) Rex v. Shipton, 8 B. & C. 88; 1 M. & R. 394, S. C. William Partridge was removed from Dudley to Shipton. Order confirmed. Case: The pauper, at the age of thirteen, was, by indentures, of 3rd September, 1816, put out an apprentice, until twenty-one, by the parish of Stanton Long, to Joha Taylor. After the pauper had been some months at his master's farm, Taylor, not having sufficient work for him, asked him if he would go over to a farm called the Moorhouse, in Shipton, to drive the plough. The pauper said be had no objection, and immediately packed up his clothes and went. The Moorhouse was in the occupation of a Mrs. Corser, the sister of Taylor. Taylor occasionally went over from his residence, and gave his advice to his sister, respecting the management of her farm. He gave orders to her servants, but does not know that he ever gave orders to the pauper after he had been sent to Moorhouse. Taylor never told the pauper that he might hire himself or make any engagement with Mrs. Corser, but retained possession of the indentures. No agreement was made between Taylor and his sister respecting the pauper. On the pauper's arrival at the Moorhouse, Mrs. Corset asked if he would stay and drive the plough for his meat and drink for a twelvemonth. He replied that he would, and she sent him to drive the plough. For his services at the Moorhouse for the first and second year, the pauper was not paid any money, but was found in clothing (except a pair of shoes and some stockings) and in meat and drink by Mrs. Corser. At the end of the second year, he hired himself for a year to Mrs. Corser, for 5!, and served that year, and received his wages. When that had expired, he hired himself for a year for 61., and received that sum on the completion of the year. During the time that the pauper was in the service of Mrs. Corser, which was four years and four months, he never received any orders from Taylor, nor did he ever return to Taylor's farm after he first quitted it. No assignment of the indentures was made, nor was the consent of any magistrate obtained for placing the pauper with Mrs. Corser. When he had been two years at Mrs. Corser's, Taylor became insolvent, and quitted his farm, after which he ceased to have any thing to do with the Moorhouse, and saw no more of the pauper. Before Taylor's insolvency, and whilst the pauper worked at the Moorhouse, Taylor, on the application of the pauper's mother, furnished him with some shoes; and, on another occasion, supplied him with some wool to make stockings for him. He also employed a surgeon to attend him whilst labouring under a complaint, and paid his bill. When the pauper left the Moorhouse, his apprenticeship had not expired.-Lord Tenterden, C. J. Upon both (b) grounds I think the justices were wrong in their conclusion. In order to gain a settlement by apprenticeship, there must be a continued service under the indenture. If, during the term of apprenticeship, the apprentice hires himself to a stranger to the indenture, the service is not referable to the indenture, but to the contract of hiring; and, consequently, no settlement is gained by apprenticeship. Here, the pauper hired himself to Mrs. C. He might, therefore, have gained a settlement by hiring, if he had not been an apprentice. The service was not under the in (a) See also as to this, the two preceding cases. (b) As to the other point, namely, whether this was a putting away of the apprentice within the 56 Geo. III. c. 139, s. 9, see post. Sixthly, Of settlement by denture, but under the contract of hiring.—Bayley, J. Rex v. Whitchurch is novo. Rex v. Christowe, 11 East, 95. Elizabeth Pain was removed from Moretonhamstead to Christowe. At the age of seven years the pauper was bound an apprentice by the parish of Christowe, to William Ponsford, with whom she lived till she was eleven years old. During the apprenticeship, by a written paper legally stamped and called an indenture, Pain, with her consent, was bound by Ponsford to Smith, as an apprentice, till she attained the age of twenty-one. Smith covenanted with Ponsford to teach and feed Pain. The consideration was 51. 5s., and the indenture was signed and sealed by all three.-Lord Ellenborough, C. J. This instrument purports to be a new and original binding of an apprentice by indenture by Ponsford to Smith; it does not recognise or refer to the original indenture of apprenticeship as being an assignment of the apprentice under that indenture; nor does Ponsford thereby assume to have any right to assent to the apprentice serving another master under any former indenture, but only to bind her de How then can I say that this was a consent on his part, that she should serve Smith as a continuation of the relation of apprenticeship which she had contracted before with him, Ponsford. This would be to intend a consent contrary to what appears upon the face of the instrument to have been the intention of the contracting parties. I should be sorry to overturn the decided cases, but it appears to me that this is distinguishable from them and that there is no case where the first master affected to bind his apprentice to another de novo by an original indenture, in which his consent to a service as under the former binding has been inferred: and therefore, without disturbing those cases, but leaving them as we find them, I do not think that this instrument proved the consent of Ponsford to the service with Smith under the original binding.—Le Blanc, J. The leaning of the former decisions was to support every case of settlement, by implying the assent of the first master to the service with the subsequent master; but then it must be a consent to the service with the new master under a recognition of the original binding; and there is no case where the settlement has been held to be gained under an entirely new binding by an indenture of apprenticeship and if we were to hold this to be sufficient, we should be carrying the doctrine of constructive assent to a service under the original binding, farther than any of the former cases.—Bayley, J. In this case the apprentice never undertook to serve the second master upon the terms of the original indenture of apprenticeship to the first master, nor did the first master consent to any such service. See also Rex v. St. Mary, Hallenday, (post.) St. Petrox v. Stoke Fleming, Burr. S. C. 248; 2 Bott, 558. Anne Giles, the pauper, was bound a parish apprentice to Rebecca Gregory, of St. Petrox, till her age of twenty-one. She served five years; when Gregory, by indorsement on the indenture, delivered it up, together with all her right, interest, and term of years then to come of the apprentice, to Philip Foale, of Stoke Fleming; and on the same day Anne Giles, being then fourteen years old, did voluntarily bind herself apprentice by indenture to Foale; and served him under the said indenture at Stoke Fleming for several years. The question was, whether a settlement hereby was gained at Stoke Fleming? It was objected, that here was no regular assignment of the first indenture to Foale, it being only delivered up, but not assigned. And the term was not expired when she bound herself to Foale.-By the Court. Though an assignment of an apprentice (except in London, by custom) cannot strictly be made; yet as this assignment was with the assent of the mistress, the service under it will be good for the purpose of gaining a settlement; for the service continued under the first binding. Rex v. Ecclesfield, 6 M. & S. 174. Order of removal of J. Wostenholm, &c. from Brightside, Bierlow, to Ecclesfield, confirmed. Case: The pauper, at nine years of age, was bound in May, 1803, as a parish apprentice, to S. Carr. He served him eight years, when, in consequence of some disagree her original mas out recognition 12. Of serving law, does not new master as ter under the evidence of the second, under a 12. Of serving Sixthly, Of contract of yearly hiring. The pauper served under that contract as a sersettlement by vant, and not under the indenture as an apprentice; and very different duties apprenticeship. result, on both sides, from these different descriptions of service. Rer v. Ashby-de-la-Zouch, is strongly in point with the present. The want of knowledge in the second master, and the hiring of the pauper as a servant, are common to both cases; and those facts distinguish this from most of the cases cited in argument. For these reasons, we are of opinion, that the service with the second master was not a service under the indenture, and, consequently, that the order of sessions is right. different masters. A parish apprentice, at the sug gestion of his master, B., goes to work for C., and, without the knowledge of his master, agrees to work with C. by the year, and serves C. a year ment. He gains no settlement by apprenticeship, because the service is not refer ture. Fifthly-The Apprentice must be employed in the capacity of an Apprentice, and under the original Indenture.(a) The Rex v. Shipton, 8 B. & C. 88; 1 M. & R. 394, S. C. William Partridge was removed from Dudley to Shipton. Order confirmed. Case: The pauper, at the age of thirteen, was, by indentures, of 3rd September, 1816, put out an apprentice, until twenty-one, by the parish of Stanton Long, to John Taylor. After the pauper had been some months at his master's farm, Taylor, not having sufficient work for him, asked him if he would go over to a farm called the Moorhouse, in Shipton, to drive the plough. The pauper said he had no objection, and immediately packed up his clothes and went. under that agree- Moorhouse was in the occupation of a Mrs. Corser, the sister of Taylor. Taylor occasionally went over from his residence, and gave his advice to his sister, respecting the management of her farm. He gave orders to her servants, but does not know that he ever gave orders to the pauper after he had able to the inden been sent to Moorhouse. Taylor never told the pauper that he might hire himself or make any engagement with Mrs. Corser, but retained possession of the indentures. No agreement was made between Taylor and his sister respecting the pauper. On the pauper's arrival at the Moorhouse, Mrs. Corser asked if he would stay and drive the plough for his meat and drink for a twelvemonth. He replied that he would, and she sent him to drive the plough. For his services at the Moorhouse for the first and second year, the of pauper was not paid any money, but was found in clothing (except a pair shoes and some stockings) and in meat and drink by Mrs. Corser. At the end of the second year, he hired himself for a year to Mrs. Corser, for 5l., and served that year, and received his wages. When that had expired, he hired himself for a year for 61., and received that sum on the completion of the year. During the time that the pauper was in the service of Mrs. Corser, which was four years and four months, he never received any orders from Taylor, nor did he ever return to Taylor's farm after he first quitted it. No assignment of the indentures was made, nor was the consent of any magistrate obtained for placing the pauper with Mrs. Corser. When he had been two years at Mrs. Corser's, Taylor became insolvent, and quitted his farm, after which he ceased to have any thing to do with the Moorhouse, and saw no more of the pauper. Before Taylor's insolvency, and whilst the pauper worked at the Moorhouse, Taylor, on the application of the pauper's mother, furnished him with some shoes; and, on another occasion, supplied him with some wool to make stockings for him. He also employed a surgeon to attend him whilst labouring under a complaint, and paid his bill. When the pauper left the Moorhouse, his apprenticeship had not expired.-Lord Tenterden, C. J. Upon both (b) grounds I think the justices were wrong in their conclusion. In order to gain a settlement by apprenticeship, there must be a continued service under the indenture. If, during the term of apprenticeship, the apprentice hires himself to a stranger to the indenture, the service is not referable to the indenture, but to the contract of hiring; and, consequently, no settlement is gained by apprenticeship. Here, the pauper hired himself to Mrs. C. He might, therefore, have gained a settlement by hiring, if he had not been an apprentice. The service was not under the in (a) See also as to this, the two preceding cases. (b) As to the other point, namely, whether this was a putting away of the apprentice within the 56 Geo. III. c. 139, s. 9, see post. Sixthly, Of settlement by denture, but under the contract of hiring.—Bayley, J. Rex v. Whitchurch is expressly in point to show that no settlement was gained by apprenticeship, upon the ground that the service in Shipton was not referable to the indenture, apprenticeship. but to the contract of hiring. novo. Rex v. Christowe, 11 East, 95. Elizabeth Pain was removed from Moretonhamstead to Christowe. At the age of seven years the pauper was bound an apprentice by the parish of Christowe, to William Ponsford, with whom she lived till she was eleven years old. During the apprenticeship, by a written paper legally stamped and called an indenture, Pain, with her consent, was bound by Ponsford to Smith, as an apprentice, till she attained the age of twenty-one. Smith covenanted with Ponsford to teach and feed Pain. The consideration was 51. 5s., and the indenture was signed and sealed by all three.-Lord Ellenborough, C. J. This instrument purports to be a new and original binding of an apprentice by indenture by Ponsford to Smith; it does not recognise or refer to the original indenture of apprenticeship as being an assignment of the apprentice under that indenture; nor does Ponsford thereby assume to have any right to assent to the apprentice serving another master under any former indenture, but only to bind her de How then can I say that this was a consent on his part, that she should serve Smith as a continuation of the relation of apprenticeship which she had contracted before with him, Ponsford. This would be to intend a consent contrary to what appears upon the face of the instrument to have been the intention of the contracting parties. I should be sorry to overturn the decided cases, but it appears to me that this is distinguishable from them and that there is no case where the first master affected to bind his apprentice to another de novo by an original indenture, in which his consent to a service as under the former binding has been inferred: and therefore, without disturbing those cases, but leaving them as we find them, I do not think that this instrument proved the consent of Ponsford to the service with Smith under the original binding.-Le Blanc, J. The leaning of the former decisions was to support every case of settlement, by implying the assent of the first master to the service with the subsequent master; but then it must be a consent to the service with the new master under a recognition of the original binding; and there is no case where the settlement has been held to be gained under an entirely new binding by an indenture of apprenticeship and if we were to hold this to be sufficient, we should be carrying the doctrine of constructive assent to a service under the original binding, farther than any of the former cases.—Bayley, J. In this case the apprentice never undertook to serve the second master upon the terms of the original indenture of apprenticeship to the first master, nor did the first master consent to any such service. See also Rex v. St. Mary, Hallenday, (post.) St. Petrox v. Stoke Fleming, Burr. S. C. 248; 2 Bott, 558. Anne Giles, the pauper, was bound a parish apprentice to Rebecca Gregory, of St. Petrox, till her age of twenty-one. She served five years; when Gregory, by indorsement on the indenture, delivered it up, together with all her right, interest, and term of years then to come of the apprentice, to Philip Foale, of Stoke Fleming; and on the same day Anne Giles, being then fourteen years old, did voluntarily bind herself apprentice by indenture to Foale; and served him under the said indenture at Stoke Fleming for several years. The question was, whether a settlement hereby was gained at Stoke Fleming? It was objected, that here was no regular assignment of the first indenture to Foale, it being only delivered up, but not assigned. And the term was not expired when she bound herself to Foale.-By the Court. Though an assignment of an apprentice (except in London, by custom) cannot strictly be made; yet as this assignment was with the assent of the mistress, the service under it will be good for the purpose of gaining a settlement; for the service continued under the first binding. Rex v. Ecclesfield, 6 M. & S. 174. Order of removal of J. Wostenholm, &c. from Brightside, Bierlow, to Ecclesfield, confirmed. Case: The pauper, at nine years of age, was bound in May, 1803, as a parish apprentice, to S. Carr. He served him eight years, when, in consequence of some disagree 12. Of serving different masters. A parish apprentice, bound by her original master to another master, by a new indenture, with of the original indenture, which out recognition still subsisted in law, does not gain a settlement by serving her upon a construc tive service of the original masfirst indenture, this being only first master's consent to the new master as ter under the evidence of the service with the second, under a new contract of apprenticeship. 12 Of serving different masters. viously serving under express consent. Sixthly, Of ment, it was agreed that he should serve P. Cadman for the remainder of settlement by the term. Cadman agreed to pay Curr 1s. 6d. per week during that period. apprenticeship. The pauper went to Cadman on trial, and then served him with Carr's express consent. After three weeks the original indenture was given up, and another executed; to which the pauper, his father-in-law, Carr, and Cadman were parties. The pauper, of his own liking, bound himself to Cadman for seven years, to learn the trade of a scissors'-maker, and Cadman agreed to take him; there were the usual covenants, and the master agreed to pay the pauper 2s. a week, during the last year and a half of the term. No premium was paid to Cadman, but he continued to pay Carr the 1s. 6d. under the agreement. The pauper continued to serve Cadman during the greater part of the remainder of the original term. It was urged that this case was distinguishable from Rex v. Christowe, where, if the second indenture failed, there was nothing to shew consent; but that here there was a previous agreement which continued after the second indenture was made, and if it was void it could not affect the original binding.-Lord Ellenborough, The second indenture is not to be rejected as an entire nullity: although it be not capable of the legal effect intended, that is, to constitute an ap prenticeship, it may serve to indicate an intention that the service should not be continued under the original indenture, but should begin de novo. I think this case is concluded by Rex v. Christowe, which was decided on a review of all the cases.-Bayley, J. In Rex v. Christowe, it was settled, that unless there be a consent to the second service under a recognition of the original binding, an instrument purporting to be a new binding, is not a consent. Is it possible in this case to say, that the second service was a service of the nature above stated, when the time and manner of service are different from those under the original binding? The second master had not the same rights with respect to service as the first, neither had the appren tice the same rights with respect to his employment. In truth, the second indenture was made with another view, and shows that it was never intended that the service should be continued under the first, on the same terms as ejusdem generis.—Abbott, J., said, That he considered the parol agreement as entirely done away with by the subsequent instrument.-Holroyd, J. The second service being inconsistent with and in a different character from the first, must be referable to the engagement with the second, and not with the first master. 13. Of discharging the indenture, or vacating the apprenticeship. The consent must be given before the indentures are given up. 13. Of Vacating the Apprenticeship. (a) If the apprenticeship be prematurely determined, the apprentice is then in a capacity to enter into a new contract, either as a servant or as an appren tice to some one else, by which he may gain a settlement although a small portion only of the term for which he was bound in the first instance, has actually expired. Of course, when he is legally discharged from his indenture, the assent of his original master to his entering upon any other service, is immaterial and nugatory; it is important, therefore, to see what amounts to a discharge of the original indenture, and what is insufficient for that purpose. And it will appear that however the parties may intend to relinquish the connection of master and apprentice, and that intention is followed by an actual separation, the indenture will be still considered as in force, as far as the question of settlement is concerned, unless it be formally cancelled, or determined by one of those events which the law has said shall have that effect. There are exceptions to this rule in favour of infants, as will be seen in some of the subsequent cases. Rex v. Holy Trinity in the Minories, 3 T. R. 605. F. Whitfield, wife of Joshua W. (a patient in Guy's Hospital,) removed from Bermondsey to Holy Trinity in the Minories. Order confirmed. Case: Joshua was bound apprentice to J. Grimes, of Tower Hill, London, tailor, for seven years. He served his master about six years, when his master declined business, and (a) See division of the subject, ante, 423. |