4 liabilities of the master. suffice (p); but as far as regards the law of set- Rights and tlement, there are cases which establish that the contract may be determined without actually cancelling the deed (q). As incident to this right of the master to the service of his apprentice, he may justify a battery in his defence (r). He has also more authority over him than over a common servant, for he may legally correct his apprentice for negligence or other misbehaviour, provided it be done with moderation; whereas, if the master or his wife beat any other servant of full age, it is a good cause for departure (s). By the custom of London, a freeman may turn away an apprentice for gaming (t); but if an apprentice marries without the privity of his master, yet that will not justify his turning him away, but he must take his remedy on the covenant (u); nor can he turn him away on account of his being sick, or so lame as to be unable to work (r); and in most cases of gross misconduct, it is better for the master to apply to a justice of the peace, or the sessions, to discharge or punish the apprentice, than to take the law into his own hands. The master, however, has no power to send or take his apprentice out of the kingdom (y), (p) Co. Lit. 222. b. n. 2. (2) 1 Nolan's Poor Laws, 350. (r) 1 Bla. Com. 428.-Bac. Ab. Master and Servant, P. (s) 1 Bla. Com. 428.-F. N. B. 168.-Hawkins. B. 1. c. 176.-Bac. Ab. Master and (t) 2 Vern. 291. (y) Hob. 134.-Bac. Ab. Master and Servant, E. Rights and nor can he even compel-him to go to any part of the kingdom (z). liabilities of the master. The liability of the master is in general pointed out by the terms of the deed, and relates to the instruction and finding necessary food and lodging for his apprentice. If he be guilty of non-observance of these duties, he is liable to an action of covenant, where he has duly executed the deed. And under the provisions of the 5 Eliz. c. 4. and 20 Geo. 2. c. 19. if he neglect to instruct, or shall misuse or evil entreat his apprentice, or the apprentice shall have just cause to complain, the justices, at sessions, may discharge the apprentice, and have a power of ordering a restitution of the premium (a). And by 20 Geo. 2. c. 19. two justices of the peace are authorized, in the case of a parish apprentice, or any other, where more than 51. has not been paid as a premium, to discharge the apprentice in case the master has been guilty of any misusage, refusal of necessary provisions, cruelty, or other ill treatment towards his apprentice. But, as observed in 1 Saund. 316. the justices cannot administer punishment to masters for THEIR faults, but only DISCHARGE their apprentices. There is no doubt, however, that independently of the terms of the indenture, and of the power of the magistrates, if the master, without cause, beat, or ill use his apprentice, he may support an action against his master; and an indictment at common law may be supported against a master for not pro(2) 6 Term Rep. 454. -1 Strange. 99. (a) See 1 Saund. 313. n. 3. liabilities of viding sufficient food for an apprentice or servant Rights and of tender years, and under his dominion and con- the master. troul, whereby the infant became sick(b). liabilities of With respect to the rights and liability of the Rights and apprentice himself, they may be in a great mea- the apprensure collected from the preceding observations. tice. He has a right to sue his master, in case of nonobservance of any of the express covenants in the deed. If he duly serve his apprenticeship, he becomes entitled to set up in trade, under the provisions of 5 Eliz. c. 4. If he be misused, we have seen that, by the intervention of justices of the peace, he may be discharged from his apprenticeship. If he be unwell, and there be any probability of his recovery, so as to be able at all to attend to his employment, he has a right to insist on his master providing for him; for the master takes him better for worse, and is to provide for him in sickness and in health (c). But where a boy, who had been put out as a parish apprentice, plainly appeared to be an ideot, incapable of learning his trade, the Court confirmed an order of sessions, dicharging his master of him, for it would be hard upon the master to keep one who could do him no service, while the parish, who are bound to support the poor, should go free (d). With regard to his liability, whilst he is under age, he is bound to perform the stipulations in the indenture, and he is liable to be sued for any tort he may commit, unconnected with the contract (e), and to an action (b) 2 Campb. 650. (c) 1 Str. 99.-1 Bott, 574. (d) Skinner. 114.-1 Bott. 571.-Burr. S. C. 706. liabilities of the appren tice. Rights and for money had and received, for money embezzled (f). But no action can be supported against him for the non-observance of his duty, unless he were bound apprentice in London, according to the particular custom there (g), and the only course is to resort to the magistrates, who, by the 5th Eliz. c. 4. may either discharge him from the apprenticeship, or may cause such due correction and punishment to be ministered to him, as they shall think fit. It was at one time doubted whether the justices had power to discharge the apprentice, where the application was on behalf of the master; but their authority was fully established in the case of Hawksworth and Hillary (h). At common law, an apprentice, without any regard to age, might be guilty of felony, in feloniously taking away the goods of his master, though they were goods under his charge, as a shepherd, &c.; and may, at this day, for any such offence, be indicted as for a felony at common law (i); but at common law, if a man had delivered goods to his apprentice, to keep or carry for him, and carried them away animo furandi, this was considered only a breach of trust, but not felony. This, however, is altered by some subsequent statutes, as to apprentices above eighteen years old, and by others of above fifteen (j). And if an apprentice, pretending himself not to be an apprentice, enlist in the army (f) Peake's Cas. 223, semb. (h) 1 Saund. 314. (j) 21 Hen. 8. c. 7.-27 Hen. 8. c. 17.-12 Ann. c. 7. -Bac. Ab. Master and Ser. vant, M. 2. and see 39 Geo. 3. c. 85. and obtain money on that account, he may be in- Rights and dicted as a cheat (h). liabilities of the appren tice. II. OF ASSIGNING AND TURNING OVER AN APPRENTICE. turning over As the placing out an apprentice to a particular person, arises from an esteem and good opinion of Assigning and the party to whom he is committed, that he will an apprennot only instruct him in his trade or calling, but sice. will also be careful of his health and security, and therefore the common law has considered it such a personal trust or confidence, that the master cannot assign or transfer it over to another (1). And it is said, that if the master assign his apprentice, and the latter consent to such assignment, yet this will not make him an apprentice to the assignee, under the 5 Eliz. c. 4. (m); so that it should seem questionable, whether the new master, for employing such apprentice under the assignment, would not be liable to an action on the statute, for setting to work a person who had not served nor was serving an apprenticeship. The infant is not liable to be proceeded against, either criminally or civilly, for not serving the party to whom he has been assigned (n). But by the custom of London, a freeman may turn over his apprentice to another (m) Dalton, c. 58.-1 Bott. 579.-1 Wils. 96. (n) 1 Bott. 580.-2 Keb. 519. |