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The power of the feffions to discharge apprentices extends only to

fuch trades as are specially named in the ftatute.

S. C. Carth. 198, 366.

340.

5. Mod. 139,
1. Saund. 313.
1. Vent. 174.
1. Burn's Juft.

74.

721. Rex v. Gately, Mich. Term, 7. Will. 3. Salk. 471. -Green was bound by indenture in this manner to Gately, a furgeon, "to learn the trade he now ufeth." Upon complaint of Green, that his mafter (who was a mountebank) did not inftru&t him in his art of furgery, but made him learn to dance upon the rope, &c. the feffions difcharged him. Exception was taken to the order, that by it the fervant was difcharged from his mafter, whereas the discharge fhould have been mutual. SECONDLY, Because the ftatute 5. Eliz. c. 4. with regard to difcharging apprentices extends only to apprentices mentioned in that claufe of the ftatute, and there neither furgeon nor mountebank is mentioned; and though a furgeon may be a trade within the ftatute, fo far as that a man cannot execute it without ferving an apprenticefhip to it, becaufe that claufe of the ftatute is general, yet this part of the ftatute relating to the discharge of apprentices extends only to trades there mentioned. THIRDLY, The order is not under the feals of the juftices, which is exprefsly required by the 'ftatute.—PER CURIAM. As to the firft exception, the discharge of the fervant is the difcharge of the mafter. As to the fecond, the claufe of the ftatute relating to the discharge of apprentices is general, and goes to all manner of apprentices, even to thofe of a merchant, as it was adjudged in Hawksworth v. Hillary (a). But afterwards THE COURT was of opinion, that the power of difcharging reaches only to the trades mentioned in the ftatute, among which a furgeon is not mentioned, for that although, as to the ferving feven years apprenticeship, a furgeon comes under the general terms "arts and myf"teries," yet the power of difcharging reaches only to the trades particularly mentioned (6).-But HALE, Chief Reg.. Furnele, Juftice, was of another opinion.

(a) Ante, page 509. pl. 711.

(b) See alfo

Sett. & Rem.21, accord. Sed vide Rex v. Cuttingburne, poft. by which it appears to be now determined, that the authority of the feffions extends to other trades than thofe mentioned in the statute.

The feffions

have original

tices.

722. Rex v. Johnson, Trinity Term, 13. Will. 3. Salt. 68.-An apprentice was difcharged by an original order authority to dif- made at the feffions, without any previous application charge appren to a juftice of the peace, to endeavour to compromife the matter as the ftatute directs. After feveral debates, THE COURT declared, that if it had been res integra, they fhould have held a previous application to a juftice neceffary; but as fo many original orders made at feffions had been confirmed here, it was too late to call the matter in queftion. And as to the fecond objection, that the juftice had ordered money to be returned, that was

held

held to be a power confequential upon their jurisdiction to discharge.

feffions must

723. Reg. v. Rutter, Eafter Term, 10. Ann. MSS.-The The order of defendant applied to a fingle juftice, under 5. Eliz. c. 4. ftate that the f. 35. complaining of the mifconduct of his apprentice; defendant apbut on defect of relief he made application to the feffions, peared or was where an order was made that he fhould be difcharged fummoned. from his apprentice.-SIR JAMES MONTAGU objected, that it did not appear upon the face of the order, that either the mafter or the apprentice were prefent; and he cited the case of Hawkfworth v. Hillary (a).-PARKER, (a) Ante, page Chief Justice. The mafter must be there; for if the matter 509. pl. 711. cannot be made up by the juftice, he must bind the master to appear in a recognizance at the next feffions; and if he do not appear, the recognizance will be eftreated.

returned on dif

724. Rex v. Vandeleer, Mich. Term, 4. Geo. 1. Stra. 69.-- The feffions The juftices at the feffions order an apprentice, who had been cannot order ill used, and not provided for, to be difcharged, and that money to be the master, having received 51. with him, fhould refund charge of an 31. as a further provifion for him. This was moved to apprentice. be quashed, because the statute 5. Eliz. c. 4. f. 35. which gives the juftices power to difcharge apprentices upon complaint to them, gives them no authority to order any money to be returned.-PER CURIAM. It is very hard, that if the mafter mifufe his apprentice the next day after he is bound, that he should pay back nothing if he is difcharged. It will be an encouragement to masters to treat their apprentices ill; but the ftatute being filent, the order must be quafhed (b).

(b) Sed vide the cafe of Hawksworth v. Hillary, ante, page 509. pl. 711. where it is held that the justices may order money to be returned as a coníequence of the power to discharge. S. P. Rex v. Johnstone, ante, page 512. pl. 722.; Ditton's cafe, ante, page 511. pl. 718.; and the cafe of Rex v. Amies, poft. p. 5:6. pl. 731.

725. Rex v. Hales-Owen, Trinity, 4. Geo. 1. Stra. 99. The order of -On an objection to an order of feffions difcharging feffions must be an apprentice, WILLES moved, that the ftatute only eni- inrolled. powers the juftices to discharge for misbehaviour, and not

for fickness; befide, they have not executed their autho- (c) Vide ante, rity as the ftatute requires, for the order is not enrolled (c). page 504. pl. -Both thefe exceptions to the form were held good; and the order was quashed (d).

(d) Vide post.

pl. 737.

726. Rex v. Gill, Hilary, 5. Geo. 1. Stra. 143. PER It must appear CURIAM. It has been fo often refolved that the feffions that the mafter has an original jurifdiction to discharge apprentices, that was fummoned, we will not fuffer it now to be queftioned, though it Salk. 67, 68, might be doubtful upon the ftatute itfelf; but in these Vent. 174. orders Seff. Cal. 113.

LI

491.
1.

orders it must be set forth, that the mafter appeared on (a) Sett. and was fummoned, as was held in the cafe of Rex v. Rutter (a) : Rem. 26. fupra, and for want of this the order was quashed.

pl. 723.

The feffions

account

his being af.

727. Rex v. Hales-Owen, Trinity, 4. Geo. 1. Stra. 99. cannot order an―The feffions reciting that Jofeph Higgen was bound apprentice to be out by indenture, as the ftatute requires, to John Parks, discharged on and being lame, having the king's evil, and in the opinion of furgeons incurable, for that reafon they difcharge the mafter from his apprentice.-DARNELL, Serjeant, urged in fupport of the order, that it was good becaufe the mafter cannot now have the end of the binding, which was the fervice of the apprentice.-WILLES replied, that the ftatute only enables the juftices to discharge for misbehaviour, not for ficknefs. Several other excep(b) Ante,pl.725. tions were taken as to the form of the order (b); but THE

flicted incurably with the king's evil.

A. is bound an

peace for the County have a

rifdiction with

COURT quafhed the order as to the substance, for the mafter takes him for better or worfe, and is to provide for him in ficknefs and in health.

728. Rex v. Collingburne, Mich. Term, 12. Geo. 1. apprentice to B. Strange, 663.-This was an order of feffions made at who is a free. Hicks's Hall, for the difcharge of an apprentice to a freeman of the city man of the city of London, and who was bound and inof London; and being bound and rolled there: and the order being removed hither, these inrolled there, exceptions were taken to it. 1. That the apprentice was then goes and bound and inrolled in London. 2. That he was not lives with his bound by the juftices. 3. That the binding was not a mafter in Mid- trade within the statute, the mafter being a glazier. To dlefex. The juftices of the thefe exceptions it was anfwered, that the claufe of the ftatute 5. Eliz. c. 4. f. 35. enacts, "That if any master "fhall misuse his apprentice, he fhall repair unto one jufconcurrent ju-❝tice of the peace where he dwelleth," &c. and, "That "although the cuftoms of London and Norwich are fa"ved," the ftatute has always received a large conftruction in favour of the jurifdiction of juftices; for though S. C. Seif. Caf, upon the mafter's complaint no power is given to the juftices to difcharge, yet in the cafe of Hawksworth v. Hillary (a) it is held that it was reasonable, and within the intent of the ftatute, that an apprentice fhould be difcharged from an ill mafter, as well as a master should be difcharged from an ill apprentice; and in the cafe of WilAnte, page 509. kins v. Edwards (b) there is the fame point, as well as in pl. 711. 1. Vent. 174. The First and principal queftion is, Whether (6) 1. Mod.286. the court of feffions at Hicks's Hall have any jurifdiction Ante, page 509 to difcharge an apprentice to a freeman of London? or, Whether he is not to be difcharged only by the mayor's court? It is found, that the apprentice lived with his master out of the city of London, and within the jurifdiction of the

the city, and may discharge the apprentice.

285.

1410.

Ld. Ray.
(a) I. Saund.
343.

1. Vent. 175.

1. Mod. 2.

pl. 713.

justices

REX v.

COLLING

BURNE.

juftices of Middlefex. To this exception it was anfwered, That the ftatute does not regard where the binding or inrolling is, but gives the jurifdiction expressly to the juftices of the peace where the mafter lives; and if this did not belong to the justices of Middlefex, where the mafter lives, there would be a failure of justice; for neither the chamberlain, or any other city magiftrate, have power to compel the mafter's appearance before them. To the Second exception it was faid, That it was immaterial where the apprentice was bound, for the fame reason. And to the Third exception it was faid, That formerly, indeed, it was a doubt whether the ftatute did extend to all trades, but of late it hath been settled and agreed that it does. (a) THE COURT affirmed (a) Salk. 4710 the order of discharge, and faid, they would not take Palm, 526. away the jurifdiction of the mayor's court, but only give 2. Keb. 822. a concurrent jurifdiction to the juftices of the peace for Rex v. Taun the county. And it would be very inconvenient to have ton, Hilary apprentices to a freeman of London, who are bound there, Term, 6. Geo.. and who live in diftant countries, obliged to come up to See poft. pags the mayor's court to get themfelves difcharged; and the $25. words of the ftatute are very plain, for they give the jurifdiction to the juftices where the apprentice lives.

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and the cafe of

729. Rex v. Davis, Trinity Term, 12. Geo. 1. Stra. 704. The feffions -Order of feffions for difcharging an apprentice; the cannot dif only reafon given for which discharge being, that the charge without mafter in open court declared that he would not take S. C. 1. Seff. him again, was quafhed.

caufe.

Caf. 283.

730. Rex v. Davis, Trinity Term, 12. Geo. 1. Stra. 704. The feffions have original It was agreed to be a point not now to be difputed, that the feffions have an original jurifdiction to dif- s. C. 1. Seff. charge apprentices.

Caf, 284.

apprentice to be

731. Rex v. Amies, Hilary Term, 6. Geo. 2. MSS.- The feffions MR. STRANGE moved to quafh an order of feffions for may order an difcharging one Stannard from his apprenticeship to a difcharged, and carpenter, and returning the apprentice fee: FIRST, money to be reThat it was not one of the trades mentioned by the turned though 5. Eliz. c. 4. f. 531. (b) and therefore the juftices had no bound to a Jurifdiction. SECONDLY, Admitting the feffions to have trade not menioned in the act an original jurisdiction, it does not appear that the mafter but the order had any money with the apprentice. THIRDLY, They muft state that have no authority to order reftitution of the money, the defendant FOURTHLY, That it does not appear upon the face of peared or was the order that the mafter appeared, or was fummoned fummoned, and default;

and that the master had received money with the apprentice. (6) Vide poft. page 325. pl. 746.

L12

and

REX.
AMIES.

(a) 2. Salk.

471.

Carth. 198.

Ante, pl. 721. (b) 2. Keb. 822. Ante, page

309. pl. 713.

and made default.-MR. FORTESCUE, in fupport of the order of feffions, contended, FIRST, That although the trade of a carpenter is not mentioned in the 5. Eliz. c. 4. f. 3. or 27. on which fections the order is founded, yet it is mentioned in fection 30; and that the thirty-fifth fection, which authorizes the juftices to discharge apprentices, muft certainly have a reference to all the trades mentioned before: and he cited Rex v. Gateley (a), and the cafe of Watkins v. Edwards (b). SECONDLY, The order being, that" William Amies do return and pay back "the fum of five pounds to his apprentice," it muft be intended that he had received money with him. THIRDLY, The order recites the complaint, that the defendant did not inftruct his apprentice; and that this charge" appearing to be true, and after hearing counsel "and evidence touching this matter, it is ordered, &c." and thereupon it does fufficiently appear that the mafter was heard but he further faid, that it was not neceffary that the defendant fhould be fummoned at all. FOURTHLY, He relied upon the cafes in Salkeld (c), that the feffions may order reftitution.-MR. STRANGE (d) See 2. Bar. replied (d).-PAGE, Juftice. There must be a fummons, but it need not be fet forth in the order; neither is it neceffary to say that the mafter was heard, for fummons and default is equal to appearance.-PROBYN, Juftice. doubted as to the fummons not being stated in the order; but faid, that the juftice may order reftitution, as incident to the power of difcharging.-LEE, Juftice. This is an original proceeding at feffions, and therefore notice is neceffary; for notice is of the effence of juftice. If the application had been firft to the juftices, and the parties had gone to feffions, the other fide must have taken notice. In orders it is not neceffary to ftate the notice. -The First objection was given up.

(c) Salk. 67.

490.

K. B. 297.

Seffions have

original jurif. diction in difcharging apprentices. It

must appear

that the party

appeared.

9. C. Stra. 1014.

732. Rex v. Heafeman, Eafter Term, 8. Geo. 2. Annalley's Rep. 101.-FIRST exception to an order of feffions for difcharging an apprentice, That this is an original application to the feffions, whereas they have not an original jurifdiction. SECONDLY, That if the feffions have an original jurifdiction, yet it is limited, upon the appearance of the mafter, or fome default made by him, which ought to be fhewn in the order; and nothing of that appears on this order. THIRDLY, That the jurifdiction is not rightly exercifed, for the reafon they give is for unkind ufage from the mafter; and though the order fays farther, that the mafter refufed to continue him in his fervice, or to entertain him according to the inden

tures,

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