that any thing which passed by parol between the foreman and the pauper, was not admissible evidence to explain the agreement. It is said there is an exception to the agreement, by reason of that stipulation, whereby the pauper agrees to obey the rules of the factory. But that imports no more than a contract to obey the orders of her master, which is a term implied in every contract of hiring. Order of sessions quashed.

Thirteenthly-Imperfect Apprenticeship not a good Hiring. (a)

It must be a contract for service, and not an imperfect contract of apprenticeship. Those cases only are inserted here where the contract has been held to be a hiring. Those relating to imperfect apprenticeships are collected under that title.

Rex v. Little Bolton, 2 Bott, 222; Cald. 367; 1 Nol. P. L. 539, 545. The pauper went to W. Stott, at Great Bolton, and asked him if he would teach him to weave counterpanes; Stott answered, he would teach him, if he would work with him two years and a half or three years, and the pauper's earnings were to be divided between them; the pauper was to find himself with meat, washing, and clothes; he was engaged on these terms, and an agreement in writing was entered into accordingly. The pauper worked with Stott under this agreement, in Great Bolton, about a year and a half, and then the pauper gave the master 20s. to be free, having then married. The master (whilst he was working under the agreement) found him looms, room, and materials; he never employed the pauper in any work but weaving; the condition upon which he taught the pauper to weave was one half of his earnings. Stott received the money, and paid the pauper one half, and looked on it that he had a right to receive it; but sometimes he let the pauper receive it.-Lord Mansfield, C. J., delivered the judgment of the Court. We have looked into the authorities, and we find that all those cases of apprenticeships which have been holden to be defective (b), and not convertible into hirings and services, speak of the pauper as an apprentice, and that he was to serve as such. There is no such statement here; and we are therefore of opinion that it is a good hiring and service. Orders quashed.

Rex v. Eccleston, 2 East, 298; 2 Bott, 230; 1 Nol. P. L. 532, 539. Removal from Little Bolton to Eccleston, confirmed. Case: The pauper, when about fifteen years of age, went to Tonge with Haulgh, and made a verbal agreement with S. Clough, a weaver of counterpanes, to serve him a year and a half. Clough was to teach him to weave counterpanes, and the pauper was to have one half of what he earned, and to find himself in every thing. Nothing else passed between them on making the agreement. The pauper worked with Clough for a year and a half; except for a fortnight, during which he remained absent; but Clough however brought him back into his service, and obliged him to stay a fortnight over the year and a half, in order to make up the time he had been absent from his service. During the time of his service he constantly slept at the house of his mother. -Lord Ellenborough, C. J. I gave a reluctant assent to Rex v. Little Bolton; but as the case now before us is in terms the same as is there decided, I think it is better to abide by that determination, than to introduce uncertainty into this branch of the law; it being often of more importance to have the rule settled, than to determine what it shall be. I am not, however, convinced by the reasoning of that case, and if the point were new, I should think otherwise. I should consider, as Lord Kenyon said, in Rex v. Laindon, that if the relation of master and apprentice be created by the contract of the parties, though they do not use the very words, master and apprentice, yet, if they use words tantamount, it is sufficient. The word "apprentice," he observed, was taken from apprendre, to learn; and

(a) See division of the subject, ante, 319.

(b) This has been overruled in several

cases. See Rer v. Laindon, as cited
by Lord Ellenborough in the next

case.

&c.

Thirteenthly, what was that but an apprenticeship, where the purpose of the contract Of imperfect was, for one man to teach and the other to learn a trade. Then what apprenticeship, was this intended to be? I should have said, upon general reasoning, that where the contract was, that the master should teach the other a trade, and the latter was to do nothing ulterior the employment in that trade, it was a contract apprendre in the true sense of the word; and being defective in this case, for want of proper legal formalities, it could not endure as a contract of hiring in a servant. However, as Lord Kenyon did not think proper to over-rule Rex v. Little Bolton in terms, though he disapproved of what was there said; and as it was not overturned in Rex v. Highnam, or Rex v. Rainham, for the reason I at first gave, I think it better to concur in that decision, however unwilling I should have been to have done so in the first instance.-Per Lawrence, J. The case referred to is directly in point, and not having been over-ruled, it ought to govern the present. Rex v. Laindon, and Rex. v. Rainham, are both very distinguishable from the present.

If one be clubbed for three years, to be taught a trade, and contract to do any work he may be set about, it is a hiring (a).

The pauper en

tered into a writ

ten contract (unstamped and without seals) to

serve for three years, to learn to make bricks :

Held to be a hir

ing in the relation of master

and servant (6).

Rex v. Coltishall, 5 T. R. 193; 1 Nol. P. L. 537. At Lady-day, 1785, the pauper being about eighteen years of age, and a bricklayer's labourer, was clubbed with J. Rolfe, of Coltishall, for three years, at 6s. per week the first year, 7s. the second year, and 8s. the third year; to board, lodge, and wash for himself: he was to be taught the trade of a bricklayer. An agreement in writing was to be prepared for three years, but this was never done. The pauper served two years and upwards, and then, upon some difference, his master and he consented to part. No premium was paid. The pauper was to do any work Rolfe set him about, and was not to be absent from his business during any part of the time.-Lord Kenyon, C. J., said, that it was impossible to raise a doubt upon the case; for that the concluding part of it, which stated that "the pauper was to do any work his master set him about (a) was decisive to shew that he must be considered as a hired servant; and that, although one of his objects was to learn a trade, that was deemed equivalent to part of his wages.

Rex v. Martham, 1 East. 239; 1 Nol. P. L. 378. By an agreement made by the pauper's uncle, he was clubbed with B. a bricklayer, for three years, at certain weekly wages, to learn the trade of a bricklayer, and to do any other work his master might set him about, with a proviso, that if he were prevented from working by bad weather, illness, or want of employment, there should be a proportionable deduction of wages. It was holden that the pauper gained a settlement, though occasional deductions on those accounts were made. The case was decided upon Rex v. Coltishall.

Rex v. Shinfield, 14 East, 541; 1 Nol. P. L. 416, 448. M. Lanesbury was removed from Reading to Shinfield. Order confirmed. Case: The pauper's husband, R. Lanesbury, in June, 1806, hired himself for a year to J. Palmer, brickmaker, and continued from that time upwards of a year in Palmer's service. On 29th September, 1806, the pauper's husband (being still a minor) and Palmer, signed an agreement on unstamped paper, and not under seals, under which the pauper's husband served the whole three years. The agreement was: "I, R. L., do hereby covenant and agree to serve J. P. for three years to learn to make bricks, and the art of burning, on condition of the said J. P.'s finding me sufficient victuals, lodging, and clothes, and to be clothed in the habit of a working-man at the expiration of the three years, on condition of my helping to attend the kiln on nights: 29th September, 1806.-(Signed) R. L." and attested. In the margin of the paper, near the attestation, was written, "I, J. P., consenting to the above agreement." The appellants produced R. Lanesbury's mother, who swore that Palmer came to her and asked her if she had any objection to her son being apprenticed to him, and she said, "No." The case having been argued,-Lord Ellenborough, C. J. This was the case of a person who, though a minor, had

(a) This is not decisive. Rex v. Combe; Rex v. Tipton.

(b) This case also stated, that "clubbing signifies a person contracting to

serve for the purpose of learning a trade, and to have less wages on account of learning the trade."

power to contract for a hiring and service to another, or as an apprentice, (Drury v. Drury, cited in 3 Term. Rep. 161.) Quâcunque viâ dâtâ, the pauper gained a settlement in Shinfield; for if the instrument were invalid as being a fraud upon the law, it is clear that there was no good apprenticeship created, because it was not created in the manner prescribed by the law; and if invalid and not receivable in evidence, what is there to do away the former contract of hiring for a year? But supposing it to be valid and not operating as an apprenticeship, but as a hiring in the relation of master and servant, what is this but the case of a continuing service operating under a new contract of hiring, merely superadding other terms whereby the servant was to have food and clothing provided for him in the manner stated, and an opportunity of learning the trade of his master, instead of seeking for a compensation for his service upon a quantum meruit. It is therefore unnecessary to determine whether or not this was a good contract of hiring and service, as created by the written instrument. And all the cases cited by the appellant's counsel differ from the present, because in none of them was there a good contract of hiring and service, independent of the imperfect contract of apprenticeship in dispute. But here there was an original perfect contract of hiring and service, which was not defeated by an invalid instrument. With respect, however, to Rex v. Little Bolton, the Court, in Rex v. Eccleston, considered it as a subsisting authority, whatever question there might have been upon the subject at first, and I think the convenience of the thing is in support of it, but it is not necessary now to discuss that point-Grose, J. Here there was originally a good contract of hiring and service, and that was not done away with by the subsequent instrument, whereby the parties merely prolonged the duration of the contract, and fixed the compensation to be made by the master for the service.-Le Blanc, J. This case is distinguishable from all the former cases in which the question has been, whether the contract was to serve as an apprentice, or as a hired servant; where if the Court considered that the contract was to serve as an apprentice it could not enure to give a settlement, as in the case of an hired servant, for in none of those cases was there any valid contract of hiring and service existing before, independent of the instrument in question. But here the husband of the pauper had first entered into a good contract by parol, as a hired servant for a year, and pending that contract he and his master entered into a written agreement, by which it is contended that the parties meant to contract for an apprenticeship, and that this, though invalid for the purpose of creating an apprenticeship, yet changed the nature of the service under the former hiring into a service as an apprentice, and therefore prevented the gaining of a settlement as a hired servant. But I do not accede to that argument; because, if there were at one time a subsisting valid contract of hiring and service for a year, and pending that the parties enter into an invalid agreement, I do not see how that can do away the former valid contract. But even upon the construction of the written instrument itself, I do not think that it is to be taken as a contract of apprenticeship. In all the former cases where the instrument in question has been so construed, it has been stated, that the parties intended to contract in the relation of master and apprentice, only they had contracted informally, in order to avoid the stamp duties. But here the contract is for Lanesbury to serve Palmer for three years, to learn the art of a brickmaker, on condition of Palmer's finding him in board, lodging, and clothes; there is no contract by the master to teach him, but only for the boy to have the opportunity of learning the business. It is said, that no wages are reserved, but that is no more than what often happens with boys at service; they get less at first, because they must first learn their business before they can be of use to their masters in it. Then, though it is stated here that the boy was to serve his master to learn his business, that would not prevent it from operating as a contract of hiring and service. I do not think, therefore, that this was, in the terms of it, an agreement for an apprenticeship, so as to supersede the former contract of hiring and service. But even if it were intended as an apprenticeship, yet the instrument being invalid, would not supersede the former valid contract.—Bayley, J. I consider the instrument as a contract

Thirteenthly,

of service, and not as an apprenticeship. There was an original good conOf imperfect tract for a year between the parties as master and servant generally, and apprenticeship, after three months' service generally under it, they entered into a new &c. agreement, by which the boy was to serve his master for three years, not generally, but to learn to make bricks and the art of burning, upon condition of being found in board, lodging, and clothes. The meaning of the parties, therefore, was, that the general service before contracted for should be restrained to such service as would enable the boy to learn his master's business. If an apprenticeship had been intended, there would have been words introduced into the agreement binding the master to teach the boy, and there being no such words of obligation on the master, and the written contract not having the ordinary words of binding to serve as an apprentice, and the intent of the parties, as collected from the terms of it, being at least equivocal, we are warranted by the cases in saying, that the object of it was merely to confine the general service, before contracted for, to such parts of the master's employ as would enable the boy to learn his business. If this, therefore, was to give an extraordinary benefit to the servant, the master might well stipulate for receiving such service without the payment of wages. Orders confirmed.

Rex v. Burbach, 1 M. & S. 370; 1 Nol. P. L. 544. Removal of Mary, the wife of W. Timson, from Burbach to St. Mary, Birmingham. Order quashed. Case: The father of the pauper's husband made a verbal agreement with R. Palmer, of Burbach, frame-work-knitter, that his son should be with Palmer, and work with him for two years, and have what he got, and that he should allow two shillings per week out of his gains to Palmer: viz. one shilling for teaching him the business of a frame-work-knitter, nine-pence for the rent of a frame, and three-pence for the standing of the frame. Nothing was said about his being an apprentice. The pauper's husband served Palmer for two years at Burbach, and had what he earned after the two shillings per week were deducted, who found a frame and all materials, but the pauper's husband paid for the needles himself; and in regular work he earned about ten shillings per week. The pauper's husband had no right to work for any body else in Palmer's frame, nor did he do so to Palmer's knowledge; he received no wages, and boarded and slept all the time at his father's house, where his washing was done; he did no act as a servant for Palmer by his order; and on Sundays he was at his father's house.-Lord Ellenborough, C. J. The case was fully argued on both sides. The ground of argument taken is, that the father was the contracting party, and could not bind the son. It certainly cannot be contended that the son would at all events be bound by the contract of the father; but in every case, if a contract be made by a person standing in a peculiar relation to another, on his behalf and for his benefit, and that other performs his part of the contract, there is no authority which should restrain me from leaving to the jury whether he did not adopt the contract. It seems absurd to say that if a party contract on my behalf that I should do work, and I do it, that the rule of omnis ratihabitio does not apply. Every jury upon such a question would find a previous mandatum evidenced by the service afterwards. Here the son is acting as servant; but if it were doubtful, the sessions have drawn the conclusion, and have not submitted to us any question whether he was bound by the contract. The question then is, whether this is a contract of hiring and service, or of apprenticeship. It certainly cannot be called an apprenticeship, nor does it bear any of its forms; for although there is mention of an allowance to be made by the son on account of the master's teaching him the business, yet that is not peculiar to the contract of apprenticeship: it enters into the contemplation of almost every contract of hiring and service, how far the servant has learnt his art, or stands in need of farther instruction; and according to his proficiency a consideration is made in the rate of wages. It is the measure to which each party resorts in apportioning the compensation; and if the circumstance of the servant's having to learn his art is to make a difference, it would change the nature of most contracts of hiring and service, even in the meanest situations, into that of an apprenticeship. As to Rex v. Little

Bolton, without saying whether one quite approves the principle of that case, it is enough to say that the Court has been so much in the habit of acting upon that decision, that it would now be dangerous to set it aside. I do not say that if that case were erroneous, and only destitute of legal foundation, it would not be right to set it aside; but if it stands on plausible grounds, it ought not to be canvassed too nicely. This case is stronger than Rex v. Little Bolton: there the master agreed to teach the pauper if he would work with him two years and a half or three years; so that the teaching was of the very essence of the contract. Here there is no express contract by the master to teach, only an allowance by the servant out of the earnings for teaching, which perhaps may amount to an implied one. I will not say that an action might not be maintained upon this contract for not teaching, although upon a demurrer to a declaration framed upon it, there might be difficulty. Admitting, however, that such a contract may be inferred, it is by no means so clear as assumed in argument: and even if it were, it would not be so strong as Rex v. Little Bolton, which was an express contract. There Lord Mansfield observed upon the agreement, not speaking of the pauper as an apprentice; and here there is no mention of apprenticeship, except as far as learning and teaching are ingredients in the contract of apprenticeship, which they are also in almost every contract of hiring and service regularly entered into. Therefore, without saying that Rex v. Little Bolton is not law, we cannot hold that this is not a good hiring and service.-Le Blanc, J. With the exception of name, this case and Rex v. Little Bolton, are the same.-The other judges concurred. Order of sessions confirmed.

First-Of connecting Services under distinct Hirings.

The 8 & 9 W. & M. c. 30, s. 4, enacts, that no person so hired shall be adjudged or deemed to have a good settlement in any such parish or township, unless such person shall continue and abide in the same service during the space of one whole year. (See statute, ante, 318.)

In order to perfect a settlement by hiring and service, it is therefore necessary that the person continue and abide in the same service during the space of one whole year, (ante, 318.)

But it is obvious that a person may abide in the same service under different successive hirings, and the law does not require that the hiring and the service shall be for one and the same year, to entitle the party to a settlement.

It is said, that in Dunsford v. Redgwick, Fol. 133; 2 Bott, 364; the Court declared that there ought to be one entire contract, and one entire service for a year, pursuant to that contract. But it is proper to remark, that the point in question in that case was, whether a hiring for two half years should be deemed a sufficient hiring, and not what should be a sufficient service under such hiring.

Rex v. Overton, Burr. S. C. 549; 2 Bott, 366. The pauper, Bayley, was settled in Overton, and on the 25th day of March contracted with Orpwood, of the parish of Steventon, for the wages of 20s., to serve him from the said 25th day of March, 1697, until Michaelmas then next following, and which time she served accordingly. At Michaelmas, Orpwood contracted with her from the said Michaelmas for one year ensuing, for the wages of 30s., and she remained with him until some time in the month of April,