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one year and a half; and then the said indenture was Rex v. INHAdefiroyed, by consent of the master, the father, and the AP

BITANTS of

WEDDING Prentice. The pauper, within half a year afterwards, bound himself apprentice by indenture, with his father's content, to Thomas Maydlin of the parish of Bulkington in the said county of Warwick, for seven years; and served the said Ihomas Maydlin in the said parih of Bulkington, under the said last mentioned indenture, four years; and then this indenture was destroyed by consent of the said Thomas Maydlin the master, the father, and the APPRENTICE. The pauper, after this, returned into the faid parish of Chilvers Coton, and bound himself apprentice, by indenture, to one Shaw in the said parish of Chiivers Coton, for two years, and duly served the said Shaw in the same parish, under the said last-mentioned indenture, the whole of the said two years. -- LORD MANSFIELD. The single question is, whether the indenture of apprenticeship in Bulkington was void, or not; there having been a former indenture; but such former indenture having been cancelled, by agreement between the master, the father, and the apprentice? The case of Austrey (a), though very correctly (I believe) (d) Burr. S. C. reported, might probably mislead the justices; by their 441, and ante, not attending to the circumstances of the particular case, P. 463. pl. 649, to which the general words there made use of were to be applied. They seem to have understood them in their abfolute and general sense, without considering their particular application to the case then under consideration; which was the case of a parish-apprentice, where the parish and the public are interested. The child was legally hound out by the parish-officers till he should be twentyfour; and the indenture was duly approved by two justices. The master, in consideration of 40 shillings paid to him by the apprentice, agreed to discharge him; and deliver

up the indenture to the apprentice. The question was, Whether the parish-officers, who bound himn out under a special authority, ought not to have been confulted about discharging him, and to have given their consent to it? The whole policy of the 43. Eliz. c. 2. 1. 5. might be defeated, if the master and parish-infant apprentice could by their joint confent alone, without the consent of the parish-officers, discharge such a contract, and set the apprentice free from it. Such a construction would evade and invalidate this law. That case, therefore, is not applicable to the present. Here, the original contract was only between the father, the master, and the apprentice: and all of them consent to the discharge. An infant may make his condition better; though he

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274. Ante,

Rex v. Inka. can't make it worse. The reason why an infant may

PITANTS of bind laimself apprentice is, because it is for his benefit. WEDDING

If he was discharged of the former indenture, he was at

liberty to execute another. The cale of St. Mary Kallen(a) Burr. S.C. der (a) is in point: I fee no distinction that can be made

between it and the preient cafe. I he indentures were p. 642. pl. 646. exchanged between the father and the matter, by confent

of the apprentice, who was clearly thien under age. And Lord Ch. J. Lee says, “ The indentures did not fubfitt; because the exchange of the indentures amounted to a cancelling of them, and a determination of the apprenticeship under them.”-MR. JUSTICE ASTON was abfent.--MR. JUSTICE WILLES and MR. JUSTICE ASHHurst concurred with LORD MANSFIELD.-Rule made abfolute.-Both orders quathed.

When a malcr 652. Rex v.Juffices of Devonshire, Trinity Term, Cold. 32. receives money 17. Gco.3: --MR.BULLER had moved for amendamus to the of his appren- jufticcs of the county of Devon, to hear an appeal to an ortice of full age der of renoval of John Crook, Elizabeth his wife, and their to vacate his indentures,

four children, from the parish of Witheridge to the parish the re'ation of Puddington, both in the county of Devon. The juiis dilləlved, tices at the feffions had refused to enter into it, as one though the

feflions had intervened tince the removal. The facts as indentures remain uncan

appeared upon the affidavits were, that the order of recelled.

moval was dated Očiober 21, 1776; in November the pauper was removed.

Some time afterwards it was agreed between the two parishes, that the question 1hould be decided by the opinion of HEATH, Serjiant; provided Tuch opinion were given on or before the 14th of January, the feflions beginning on the 15th. It was also agreed, that no other instructions should be given to the countel, than the examination of the pauper, which was: That he was born in the parish of Witheridge, and about the age of seven years was bound to Richard Eltvorihi. of Witheridge, with whom he lived till twenty-one; and then made an agreement with his matter to give him one guinea to discharge him from his apprenticeship. That the faid Richard Elvorthy gave him a discharge under his own band. That after difierent services he gained a settlement by hiring and fervice under Robert Salter, in the parish of Puddington, if he was so far discharged from his apprenticeship by the above stated transaction, as to be capable of gaining a settlement by hiring and service. On the rotli of Jonuary the opinion was given; and was, “ That if the indenture of appre: icehip remained in “ the matter's hands uncancelled, the apprenticeship full « continued; and the agreement was no dissolution

66 thercot,

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VONSHIRI.

k thereof, but only a licence to the apprentice to serve Rex v. Jus. " where he pleased.” On this day the officers of Witbe- TICIS of Deridge told the officers of Puddington, that, as the opinion was not decisive, they must inquire of the master, what had become of the indenture. At the sessions on the 15th, no appeal to the order of removal was entered. At the Easter sessions following, the parish of Puddington appealed; but the justices refuted to enter into it, as not being in time. BULLER having early in the Term moved for the mandamus, on the ground, that, under the agreement, the opinion in favour of the parish of Puddington was conclusive; and that the parish of Puddington had appealed in consequence of objections railed to this decision subjequent to the Epiphany Seffions; and therefore that the statutable limitation of appeal to the next sessions ought, during the time the parties were under terms of compromise, to be suspended; now, on the last day of the Term, FANSHAWE and Milles Thewed cause; and having fully satisfied the Court upon the fact, of the appeal having been prevented in consequence of the objection not having been raised previous to the Epi hany refsions - LORD MANSFIELD. As both parties had agreed that this question should be submitted to counsel, and that his opinion should conclude (a), though the Court (a) Vide Rex v. does not quite agree with the counsel in point of law, she juftices of they would not, had the opinion been positive, have Northampto, granted the mandamus. Upon the point of law, I am of Cald. p. 3o.

, opinion, that if the indenture had not been destroyed, but remained in the master's hands, the apprentice would yet have gained a subsequent settlement in Puddington. The master received a guinea of his apprentice, then at

age, for the express purpose of vacating the indenture. Why, could the matter, after this, have used the indenture against the apprentice? So far from it, that the apprentice might have brought an action against the master for it. But the opinion of the counsel was hypothetical only, and upon a state of facts at the time not fettled and submitted to him by the parties. The case therefore might be considered as open to the interposition of the Court. But the merits of the case appearing to be clearly against the party applying, the Court, to prevent further litigation and expence, refused the rule; and, on account of some misconduct with respect to the afridavits laid before the Court by the profecutors of the rule, directed that it should be discharged, with costs out of pocket. - Mandamus denied.

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458

for six years

Indentures : xe. 653. Rex v. Evered, Trinity Term, 17. Gco. 3. Cald.26. cuted by an in- Two justices committed Robert Collchail, an apprentice

, to fant, whereby the Bridewell of the town of Shepion Mallet, in the county he binds himself an apprentice

of Somerset, for running away from his master. He had

been bound, when an infant, for fix years by indenture; only, are not and being now of age, he ran away, aliedging afterwards void, though that he did fo with an intent to avoid the apprenticeship, the 5 Elim.c. 4. made when he was an infant, and to his prejudice(a). birding to be HEATH, Serjeant, had inoved for a rule to Thew cause why for seven years. he should not be discharged ; and, to avoid delay and ex(a) Note, he pence, it was agreed that the rule should be so taken, with had run away liberty to the Serjeant to take all objections againft the twice before. form of the commitment, as if it had been returned on a

habeas corpus: and he now in support of it objected to the uncertainty of the commitment, which ran thus: “as an “ apprentice, or servant, for disobeying his indentures or “ articles :" and he insisted, that this being in the disjunctive could not be supported, because justices have not a power to comınit fervants generally, though they may commit servants of a particular description : that the binding hiere, being only for fix years, is contrary to the ftat. 5. Eliz. c. 4. 1. 26. which requires it to be for seven years at the least: that by lect. 41, all indentures otherwife made are void; and that it would be strange if it were not so, as no one can exercise a trade without apprenticeihip for seven years. That at common law, an infant could make no contract but such as was voidable,

though for his benefit: that upon this ftatutc, LORD (a) Burr. S. c. HARDWICKE and the Court, in the case of (a) the King

v. the Inhabitants of St. Nicholas in Ipswich, had exS, C. 2. Str. pressly adjudged, that such an indenture was voidable 1066.

by the parties: that the apprentice had in the present case Ante, p. 465. done every thing in his power to avoid the indenture, pl. 644.

liaving left his master, and said, he would live no longer under his controul: and that it would be extremely hard, that he should be subjected to punishment, only for wling that liberty and exercising those rights that the law gave him.-DUNNING and BULLER inlifted, against the rule, that the apprentice, who had submitted to the indenture as long as he derived any advantage from it, and till he had learnt his trade, should not be permitted to deiert his fcrvice as soon as he became useful in it: that this construction of the contract would be injurious to the matter; but that the contract at the time of its commencement, which was during infancy, the time at which almost all apprenticeships are entered into, was bencficial to the infant; and, being so, might legally be mads, and therefore could not be abandoned : and they

contended

91.

REX,

EVERED.

contended that, though the warrant ran in the difjunctive, yet, as he now stated himself to be an apprenrice, he was under that description liable.-LORD MANSFIELD. It has been adjudged, that an infant may bind himself for his own benefit: and it is settled in the case in Strange(a), that a binding for four years gives a settlement. (a) Rexo. -Aston, Juftice. Supposing the indentures voidable, I St. Nicholas, cannot conceive that the apprentice's running away can 2. Stra. 1066: avoid them. Had he served regularly, and during such ante, p. 461,

pl. 644. service declared his intention to depart, it might have been different. Here he would make use of his offence in order to avoid the punishment that attends it; but it is too late to do it before a justice, wheu charged with a crime.-- Wilies and ASHHURST, Justices, being of the same opinion, on this ground the rule would have been discharged: but, as upon a return to a habeas corpus, LORD MANSFIELD said, that the objection to the warrant of commitment, as running in the disjunctive, must undoubtedly have prevailed, the counsel for the prosecution consented to the prisoner's discharge.

654. Branch v.Ewington, Mich Term, 21. Ges.3.Doug!.518. Io a common -Action of covenant on an indenture of apprenticeship,

indenture of apo

prenticeship, by the master, against the father of the apprentice. The

under 5. Elx. indenture, as stated in the Declaration, was in the common forın, under the statute of 5. Eliz. C. 4.; the plain the father, son, tiff expressiy covenanting to find the apprentice meat and and master, the lodging, the defendant to find him cloaths and washing, wher is anand the apprentice, that he would serve faithfully, &c. what is to be and for the true performance of all and every of the said performed by covenants, each of the said parties bound himself to the che son. other. Branch affigned, that the apprentice had abfented himself froin the service.-General demurrer.-.-PeckHAM, in support of the demurrer, contended, that the par:ies were only bound for the express covenants which see the case of they had severally entered into. That it would be ab- Whitley . surd to construe the general words so as to render the de- Loftus, ante, fendant liable for breaches of such of the covenants as p. 453. pl. 643• were to be performed only by the fon. The fame construction would render the father liable to the fon, or the son to the father, for those which the matter wa to perform. In all covenants, the intention is to govern. The master has other remedics besides an action of covenant against the apprentice, if he absent himself. He may, by application to the justices, have him punished, under 5. Eliz. c. 4. 5 35 ; or, if he wants compensation for the loss of service, he may compel him to ma e it up by tubsequent service, under 6. G20. 3. C. 25. If the con

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