Page images


WHITLEY 5. ther of the apprentice and the apprentice of the one part.

and the master of the other part, mutually covenanted and
agreed, &c. The action was brought jointly againit the
father and son, on the breach of a covenant by the son
faithfully to account at his master's request for all such
of his master's goods as should come to his hands. After
verdict for the plaintiff it was moved in arrest of judg-
ment, that as this was a joint action, and the breach was
afligned against the son only, the plaintiff could not main-
tain hvis judgment. Neither ought the action to be brought
against the father, for he did not covenant that the fon
should truly account, &c. ; he only covenanted for him-
self separately to pay the money which he was to give to
the plaintiff for taking the son apprentice ; and the clause
in the latter end of thefe indentures is in the fingular
number, viz. that each of them the father and lon) bind
himself for the true performance thereof; so that the
father cannot properly be said to be bound for his son,
but only for himself. It was argued on the other side,
that this was a covenant entered into by the master on
the one part, and by the son with the content of his fa-
ther on the binding part, but by both father and son as to
all other purposes; for although the ton is only bound
apprentice, yet they both covenant for the true perfor-
mance of all covenants; the words in the close of the
articles being, “ that cach of them binds himself, &c.
" for the true performance of all the covenants and agree-

ments therein mentioned:” and even from the nature of these covenants the father is always bound for the fon); for otherwise masters could not rely on the covenants of their apprentices, who are commonly under age, and so not capable to consider what covenants to make ; and therefore in tliis case the father :hall be taken to covenant for the performance of his son's part as well as his own. -The Court was of opinion, that the very end of bi:iding the father was to answer the wrong which might be done by the fon to his inafter, therefore he, the father, must be obliged for his fon's true performance of the articles. It is true, that, at the end of the articles, the covenant is in the fingular number, and it must be fo where the son is bound to perform the thing for which the covenant is made: this claufe is usually inserted that the covenants may be taken distributively, viz. that each of the covenantors should perform his part; and this makes the covenant of the fon bind the father who covenanted for him as well as for himlelf.-So the plaintiff had judgment.

644. Rex

are voidable

644. Rex v. Inhabitants of St. Nicholas in Ipswich, Mich. Although the Term, 10. Geo. 2. Burr. S. C. 91.–The question was, 5. Ediz. c. 4 Whether a person bound an apprentice in a corporate prenticeships in town or city for a less time than seven years, gains a set

corporate towns tlement there, by such binding and service under it? - for less than LORD HARDWICKE. This case depends upon the 26. seven years void, and 41. sections of 5. Eliz. c. 4. by the first of which, yet indentures

tor a less zime apprentices may be retained in corporate towns for seven years at the least; and by the latter section, all indentures, unly as between &c. of apprenticeship otherwise than by this statute or- the parties. dained and limited, are declared to be void in law, to all s.c. Stra. 1066. intents and purposes (+). Iam of opinion that the latter + Vide ante, clause does not make such indenture void, but only void- p. 451. pl. 620. able by the parties themselves, and by them only. There and p. 456. are many cases, where, according to the itrict words of pl. 633. the statute, a thing is made void, yet has been held not to be absolutely void, but only voidable ; as in Whinchcomb v. Iinchester (a), and Barber v Dennis (b). The prin- (a) Hob. 166. cipal objection to this binding is founded on the deter- () Salk. 6. mination of Cuerden v. Leyland (c), where the indenture : Modago was holden to be abfolutely void for want of being saiv. stampt. But the statute 8. Ann. c. 9. not only declares that all such unftamped indentures “fhall be void,” but further adds, “and not available in any court or place, " or to any purpose whatsoever ;” and there is a subsequent claule, that no such indenture shall be admitted as evidence in any fuit to be brought by any of the parties thereto, unless fuch party in whose behalf it is produced shall make oath, that the whole fum really given with the apprentice was truly inserted. And yet the order of sellions in that case was grounded upon the indeniture wliich was not stamped, nor was the duty paid. The Itatute 5. Eliz. c. 4. rather respects the particular advantage of corporations than that of the public in general, and therefore it would be inconvenient to make too rigid a construction of it; which was likewise the opinion of the other Judges.

645. Rexv. Stratton, Easter Term, 21. Geo. 2. Burr. S.C. An agreement 272.-Stephen Petherick, at the age of fourteen years, was to execute in. by his mother (being then a widow) placed as an ap

deatures of apprentice with his brother-in-law John Petherick, by trade

prenticeship, al

though the fer a cordwainer in the parish of Stration, for six years, to vice is performlearn the said trade; but at the time of placing him as ed, and the writaforesaid, no indenture of apprenticeship was executesi

. ings were preThe mother agreed to pay to his master 41. in hand, and pared is not a

fufficient binda 41. at the end of three years, and his master was to find

ing under 5. him in meat, drink, washing, and lodging, during the Einz. c. 4.

REX ».

faid six years, and his mother was to find him in clothes Stanr10x. during the said term ; all which was performed accor

dingly: and the faid Stephen Petherick believes, that in or about the last year of the faid terin one part of an inden. fure was prepared, in order to bind him an apprentice to the said John Petherick, pursuant to the faid contract or agreement. But he doth not remember that he executed the faid part, or that it was executed by his mother, and the faid Jhn Petherick, or either of them, nor what is become of the faid one part. It was moved, that all this dotlı 110t amount to such a binding as will gain a settlement, there being no indenture duly executed.-THE COURT seemed to think this exception too strong to be answered; and made a rule to thew cause: which rule was afterwards made absolute without defence.

Exchanging the 646. Rex v. Inhabitants of St. Mary Kallonder, Trinity indentures is

Term, 21. & 22. Geo. 2. Burr. S.C. 274.-John Miles the equivalent to abeling them. pauper was twenty-fix years ago bound apprentice for

faven years to John Gregory of St. Michael's parish, and served there accordingly for five years; and then left his master. The indentures were afterwards exchanged between the matter and the apprentice's father by confent of the apprentice. About one year afterwards, the father of the faid John Miles contracted with William Stockdale of Twyford for binding the said John Miles apprentice to him for four years, and in consequence of that agreement John Miles went to William Stockdale on trial, and lived with him a year and three quarters in Twyford. But no indentures were executed, nor other agreement made.-LORD CH. J. LEE. There can be no ground to confider this as a fettlement at Twyford, but upon the fuppofition that the first indentures fubfitted, and that the service at Tuyford was under them. But the exchange of the indentures certainly, in law or equity, which are the same in this case, amounted to a canceiling of them, and a determination of the apprenticeship under them.

A parole binding 647. Rex v. Inhabitants of Mawnam, Hilary Term, 22. is not sufficient Geo. 2. Burr. S. C. 290.- Jane Mawnam was put out as to entitte an ap. an apprentice on a parole binding, no indentures, or agreeprentice to a

ment for indentures, having been drawn.-MR. HENLEY ferilement where he serves contended that the statute 3 and 4. Will. and Mary, bis cine. c. 11. f. 8. expressly requires that the binding shall be by Burr,S, C.

indenture.-NR. FORD, of counsel on the other fide, 540. 656 owned it could not be fupported.

648. Case

that the leard

648. Cafe

. of St. Saviour's Southwark, Trinity Term, Indenture not 23. Geo. 2. MSS.-Order states, that Joseph Hött, born in proved to be loft the parish of St. Thomas in 1718, lived with his father in nor to have exSt. Helen's till 1733 ; and that his mother gave evidence the mother of of his being bound apprentice by indenture to his father the apprentice, in St. Helen's in 1733, as ihe was informed by the father;

who declared that the never saw the indenture, but that it was reputed

his father fay to have been delivered to the father. It appeared that that he was Joseph served his father in St. Helen's till 1738, when the bound to him father died, and that the father always found himin clothes : by indenture, is That in 1748, Joseph was applied to at St. Helen's to not fufficient to know if he had any indenture, when ffeph faid, he could make a bindings not find it: That no evidence was given of its being loft, cute. nor was it produced: That Joseph rented a house at 51. per ann. in St. Helen's, and was rated to the land-tax, Sir. Cal. 292. and not to the poor's rate, and that he was employed by and 735his father. Two justices removed Joleph and his wife, and four children from St. Saviour's to St. Helen's. .Upon appeal, the fefsions ftate it specially as above; and it was excepted in K. B. that no parole evidence ought to be admitted of an indenture: and PER CURIAM, Theindenture is what the mother was informed of, and it is a question whether the fact be sufficient to bind the pauper within the act. The facts stated do not warrant the determination of the justices. And besides, it appears that he served only five years under an indenture, not proved to have existed, nor to be loft. Order quashed.

S. C. Burr.


as to the can.


rith indentures,

649. Rex v. Auflery, Hilary Term, 31. Geo. 2. 2. Burr. Indentures are S. C. 441.- An apprentice who was bound till be should not cancelled by attain the age of twenty-four years, was by a formal agree

their being de

up to an ment between his master and himself discharged from his

infant apprenapprenticeship, and the indentures delivered up. The ap- tice. prentice, being then under twenty-one years of age, See Rex v. was then regularly hired by a third person in Aufery, Langborne post. and served for a year.---LORD MANSFIELD. Being under bis confent was out of the case, and is exa&ly ceiling of paupon the same foot as if he had given no consent. His subsequent services then, under the hirings stated in the order, cannot be considered as performed by the master's leave and confent, and to being a service of his matter under the indenture ; because this is no express leave and consent of the master to the particular service, but was intended to be quite general, and was even founded on a miflaken apprehenfion, that the apprentice could confent to his being discharged, which being an infant he could not do. Order was quashed.

650. Rey

No agreement 650. Rex e. Whitchurch Canonicorum, Trinity Term, whatever will

5. Geo. 3. MSS.--- John Gay, when he was of the age of constitute an apprenticelip, twenty - two ycars, AGREED with William Burridge, a unless there are

ftone-mafon, to bind himself apprentice to the faid indentures exe. Burridge for the term of six years, and that Burridge cuted. should, during the term of his apprenticeship, provide S. Mod. 328. for him meat, drink, walhing, lodging, and clothing;

and that the said John Gay thould live with and work for him, as his apprentice, in his faid trade during that terin; and that indentures should be executed between them accordingly: but no fuch indentures were ever executed. The laid John Gay, immediately after the said agreement was made, went to live with the faid William Burridge, and worked for him as an apprentice in his trade for five years and upwards, in the faid parish of Wotton Fitz-payne, and was also fometimes emploved by the laid William Burridge in husbandry bufinels; of which the said John Gay complained to the faid William Barridge as contrary to the said agreement, by which the faid John Gay was to work for the said William Burridge in the trade of a stone-mason. The pauper, before the expiration of the last year of the faid term, married, and left his master, with his master's consent. There never was any other contract or agreement between the pauper and the said William Burridge. No wages were ever paid by the faid IVilliam Burridge to the said John Gay: but a little pocket-money was sometimes given to him by the faid William Burridge. The said William Burridge and John Gay always confidered themselves as master and ap. prentice : but as no indenture was ever executed between them, they thought that they were at liberty to part when they pleased. And when the faid John Gay complained to the faid William Burridge, " that he ought not to be employed except in his business of a stone mason,” the faid William Burridge told the faid John Gay, that he might go away if he pleased.—The Court. The objects. of taking an apprentice and having a servant are diftinct,

and cannot be converted one into another. The case 6.) Ante, of Rexv. St. Mary Kalender (a) is in point. Gay cannot P. 462, pl. 645. be considered an apprentice because there is no indenture.

An apprentice 651. Rex v. Inhabitants of Weddington, Trinity Term, 14. discharged of Geo. 3. 2. Burr.S.C.766.-Thomas Lawrence, the pauper, ope indenture being then of the age of eight years and a half, bound himHay be again felf apprentice by indenture, with his father's content, who sice by another. was a party to the indenture, to William Meigh of the faid

parish of Chilper's Coton, for seven years; and served him in the faid parish of Chilvers Coton under the said indenture


« PreviousContinue »