other master by a former one, he having a mere personal trust; and where the plt's. declaration states the master's title to the services to be by deed, the plt. cannot prove them by parol evidence. "This is the only contract which the common law required to be in writing." 6 Cн. 12. Art. 2. Mod. 182. Salk. 68.— Barnes' Notes 8 D. & E.374, $4. The difference taken as to an apprentice and servant, that the former must be by deed, and that the latter may be by parol, is said in Regina v. Daniel to be founded; 21 H. 6. c. 23. So that also an apprentice can be discharged but by 57. deed, and that a servant may be by parol. Though it is generally understood that an apprentice may be by parol contract in Massachusetts, no case is recollected in which this point has been decided. 66 8 T. R. 379, habitants of Rex v. In 1 East. 533. 5. And in 8 Term Reports it has been decided, that a contract of apprenticeship may be formed without using the term apprentice," and by writing signed only. The word Laindon. apprentice is taken from the French word "apprendre," to learn. And parol evidence was received to explain this written agreement, and some of the most material parts of it, and to prove some material facts not at all expressed in the writing. In this case there was no deed. Salk 68, Bar § 6. The master is entitled to what the apprentice earns, berv. Dennis. whether an apprentice legally, or only one de facto. 69. 7. So if the apprentice have a ticket or other writing, 12 Mod. entitling him to money earned by him during his apprentice- 415.-6 Mod. ship, this ticket or writing the master is entitled to; and if the Sho. 582.apprentice die, and his executor receive the money, on either Co. L. 117assumpsit lies against him by the master for so much money had and received to his use; per Holt C. J. ART. 2. Sundry cases and principles on which the action rests. Salk. 68, Ashcroft v. § 1. December 4, 1792, a boy under age bound himself 6 T. R. 652, an apprentice to the plt. for five years, to learn the trade of a Bertles.potter. August, 4, 1794, he left his master, and entered into Cro. Car. 179, the deft's. service, who refused to give him up. The court 548.—5 T. R. 716.-Cro. held, that if the contract was voidable, which they doubted, Jam. 497. "the mere act of quitting his master's service was not an avoidance of the" contract. Judgment for the plt.; for the deft. harboured his apprentice &c. But Ld. Kenyon and the court said, that every indenture of an infant is voidable at his election. Rex v. Inhab. § 2. If an apprentice or minor binding himself, can avoid 6T. R. 557, his contract at his election, yet going into the publick service itants of Hinby his master's approbation, is clearly no avoidance of them. drigham. A fortiori, if properly bound by a parent &c., the apprentice's going into such service by the consent of the master and parent &c. is no avoidance of the contract. § 3. In this case a child had been duly bound as an ap Art. 2. CH. 12. prentice in Upper Canada; the master removed with the child into Massachusetts. The mother applied to the court to have her delivered to her, and a writ of habeas corpus was issued, and the court refused to order the child to be delivered to her mother, she having married a second husband, but allowed her to remain with her master, with whom she wished to live. It was urged on the mother's part, that the indentures made in Upper Canada were void here. 6 Mass. R. 273, Commonwealth v. Hamilton. 3 Burr. 1434 -2 Stra. 982. In Mitchel v. Reynolds, 10 Mod. 138. 5 East. 38, Case. 4. An apprentice may bind himself not to set up and pursue his trade in a particular parish, for a reasonable consideration. This is not against the public interest, as he may pursue his trade in any other place. § 5. An apprentice was impressed into the public service, Landsdown's who was willing to enter into it; the court refused to issue a habeas corpus to bring him up at the request of the master, and said, that "if the party himself, being of competent years of discretion, do not complain, we cannot issue the writ on the prayer of the master, who has his remedy by action if his apprentice have been improperly taken from him. 5 East. 39, § 6. This was an action against the captain of a ship of Eades v. Van- war by the master of an apprentice, to recover wages for the deput. services of said apprentice, who, having been impressed, was detained on board the deft's. ship, who was informed by the apprentice that he was one. This was deemed sufficient to induce the deft. to make inquiries as to what the boy said. Judgment for the plt,, the master. The tort of enticing may be waived, and assumpsit lies. 3 Maule & S. 191, 202. 5 T. R. 715, § 7. If an apprentice, of seventeen years of age for instance, Davis' Case. bind himself for seven years, and in the contract, state he is fourteen years of age, he must be discharged at the age of twenty-one years. The court held, that "every indenture of an infant is voidable at his election, and in such cases the master must trust to the covenant of those who engage for the infant." It was, however, after this, as above, the court doubted if a minor cannot bind himself by his indentures of apprenticeship, the contract being evidently for his benefit. The authorities on the whole are clear he cannot. It has sometimes been made a question, if a father, and after his death, the mother, can bind a minor child to a master so as to entitle him to its services, and if it leave his service to an action against the parent, merely by parol and not in writing. Very numerous are, and have been, the cases in which the contract has been by parol only, though it is laid down in some books, that an apprenticeship must be by deed; yet this must mean only where certain statutes required a deed, as they sometimes do, and sometimes deeds by indenture; for it is clear in the case of Rex v. the Inhabitants of CH. 13. Art. 1. Laindon, that an apprenticeship may be constituted by a mere writing and without deed; and it is settled in many books that a servant may be made, or bound by parol. There is no statute in this state that requires a mere writing in such cases, and where a mere writing is not required by any statute, it is no more binding when made, than a contract by parol is. It seems clearly to follow, that a binding by parol is valid in all cases, in which statute law does not require a deed or writing. Hence one of age may clearly bind himself, at common law, apprentice or servant by parol. So may the parent, his or her minor child, unless this binding out by the parent be an under- Burr. Settl. Cases, 12, taking "for the default or misdoings of another," and so a case 248, 578.within the statute of frauds. But is the case of a parent and 1 East. 95.minor child within this statute. The statute speaks of the case in which A, for instance, undertakes for "the debt, default, or the Peace, misdoings" of B. It goes on the ground of a debt, &c. and B. 55. so supposes the person undertaken for, capable of contracting a debt. This is not, generally, the case of a minor. Com. D. Justices of § 8. On the whole, the best opinion is, that this statue does 6 Johns. R. not extend to these cases of parents and minor children, who 274.have no capacity to contract or undertake, and to whom, fail- Dougl.70.1 Ld. Raym. ing to pay debts, defaults, and misdoings, are not properly at- 683tributable; but the engagement of parents in such cases, are properly their own concerns. Stra. 1267. 9. The master cannot send his apprentice abroad, but Salk. 66, 68.where such power is in the contract, or in the nature of the 1 Sid. 216trade, or for the apprentice's health. If the master die, the 345. executor cannot retain him, and the better opinion seems to be he is not bound to maintain him. CHAPTER XIII. ACTION OF ASSUMPSIT. ARBITRATIONS AND AWARDS. ART. 1. General principles. § 1. When parties submit to arbitration, there is an implied assumpsit in each to abide by the award. This is a remedy by the act of the parties, whenever the award is voluntarily performed; but if not so performed, and the party in whose favor it is made finds it necessary to resort to an action to enforce his former right or the award, his action is generally assumpsit, or debt on the award. This action of debt on the award, will be considered in Ch. 141. In this chapter I shall examine the action of assumpsit CH. 13. on an award, and also the action of assumpsit on the original cause of action; though an award has been made, yet it will not support the first and bar the last, unless it be a good award: 1 Saund. 20, for there can be no action grounded on an award, unless it be a good one, and none but such a one can bar the former cause of action. It is therefore necessary briefly to see what is a good award, and how the action is affected by it. 61.-2 do. 127.-8 D. & E. 571.-3 D. & E. 592. 3 Wood's 6 Co. 78. 1 Bac. Abr. 155, 83, 129. -1 Burr. § 2. An award is as a judgment according to reason and Con. 3, 8. conscience, " and must be taken liberally, according to the intent of the arbitrators," and not strictly, as other judgments are, and the award can be explained only by itself; and an arbitrator is defined to be "Judex honorarius, non lege datus, sed ab iis qui litigant electus, qui totius rei habit potestatem ad arbitrandum, non ut lege, et stricto jure, sed prout ipse æquum esse existimet." To make the award good it must have the properties hereinafter mentioned. 7. Colclough. -2 Stra. 1024.-Kyd on Awards. 8 Wood's Con. 3. 1 Com. D. 523.-Kyd on Awards, 8, 14, 22 2 Ld. Raym. 103-Cro. Car. 433. ART. 2. 1. The submission must be by parties capable of contracting, for they are bound by it; they contract to be bound; and every one who can release his right may be this party; for any one who can release his right may settle it by arbitration. Again the submission must be in form, but it may be by parol, or in writing, conditional, or absolute, or general, as to all matters in dispute, or particular, as to some But infants may be arbitrators, as they are of the parties, choosing, if they be capable, and have discretion. But a person of a non-sane memory cannot be an arbitrator, nor one who, by nature or accident, has not discretion; nor one who -4 Mod. 226. is not sui juris, as a slave; nor a feme covert; nor one attainted of treason or felony; nor can a man be an arbitrator in his 12 Johns. R. own cause; nor one interested; he must know the law and be 2 Mod. 73.1 Com. D. 519-8 D. & E. 139.- -8 Co 81. -15 East 209. 397.-Bac. Abr. 194. 1 Rol. Abr. 244. -3 Wood's Con. 4. Kyd 22. Cro. Jam. 447.--3 Leon. one. impartial. $2. So B may submit for himself and D, and B is bound to perform, though D is a stranger. So a guardian may bind Kyd 20, 21. himself, that a minor shall perform the award. And so an administrator, as such, may submit; but if the arbitrator award less than is due to the estate, the administrator must answer for the surplus to the heirs; for the submission is his own act. 53.--5 D. & But the practice now generally is for executors and adminisE. 9, Pearson trators to submit to arbitration, especially by rule of court, and v. Henry.if they conduct fairly, the award of a sum of money or other 1 D. & E. 691, Barry v. thing, is so considered as in auter droit, and judgment accordRush-7 D. ingly; for in such case the award is viewed only as ascertaining the demand for or against the deceased's estate; only as 152.-3 Mass. reducing to a certainty what was uncertain, and not as creating 3 Comb. 318. any new debt or demand for or against the estate of the de-4 Cranch ceased. An award made on a submission entered into by 347, Peisch v. mistake, is not binding, as where the parties thought they were bound to submit. 2 Mass R. R. 235. Ware. 3. Where the submission is by parol, the plt. must shew CH. 13. not only that the parties promised to be bound by the award, Art. 4. but that their promises were concurrent. 12 Johns. R. 397, U Keep v. Goodrich. any 3 Cain. 253. -1 Dall. 164. -1 Cain. ART. 3. §1. The effect of a good award is this: if thing be awarded as a recompense for a wrong done, or for something submitted, and this recompense be paid or perform- 147.ed; or if a thing be awarded to one for which he has a reme- 1 Day's Ca. in Er. 130, dy; or if there be something as amends for non-performance, 134. as where there is a bond or an assumpsit to perform the award; then the award operates as an extinguishment of the wrong or claim referred, and the prior cause of action passes in rem judicatam, so that if either party sue again for any matter in dispute, on which the award was made, this, when pleaded, will be a bar to the action; as an award to pay money at a day not yet come, for here is an action for the money awarded; and if the day be past, then it is a good plea to say he paid or tendered, and so he must say ; but if the money awarded be not paid at the day, the party to receive has his election to have an action on the award, or to sue on the first cause of action; practice is to sue the award. 1 Saun. 29.— 2 Saund. 61, 62, 127, 128. 3 D. & E. 512.-Kyd 18.-1 Ch. on Malcolm v. 2. Again, "if there be a bare submission without bond or assumpsit, and the award be to do a thing, for which the party to whom it is to be done has no remedy, as if it be a collateral thing, as to make a feoffment, or the like, or any thing else, except the payment of money; in these cases the party will on Awards 8, 'not be barred," in a suit on the matter submitted; for he cannot Pl. 80-2 D. have an action for the non-performance of such an award; & E. 645, because ex nudâ submissione non oritur actio. This was the Fullerton.old law, but now the very act of submission implies a promise 4 Leon. 31. to perform the award; and an action lies on such a submission. And now an action may be maintained on an award of a collateral thing, made on a parol submission. Hence assumpsit lies against the party who revokes the submission, but not if the arbitrators unreasonably delay the award. A submission of all matters in difference between the parties in the suit is not confined to the action. 150, 151, 1 Rayın. 247.-1 Salk. 2d. Raym du- 76.-1 Sid. ART. 4. § 1. How the award may be a bar, though not 1 Salk 69.performed, when it gives a new duty in lieu of the former, for 1 Bac Abr. a submission implies a promise to perform, so that the party Freeman v. has a remedy for that which is awarded. But when the in- Barnard.—— tent of the award is not to discharge the old duty itself, and give a new one, but barely to cause a discharge of the old ty, not by the award itself, but by a release; the award is no 599, 600, bar of the old duty; as the referees only awarded mutual re- Pasioe v. Baileases, they must have found nothing due to either party. If ley-6 Mod. the award be to perform à collateral act, as to make a release 221-2 Ld. 160.-Keb. Raym. 1039. |