Return of premium.

dents, in a more recent case the Court of Chan-
cery seems to have disclaimed this kind of juris-
diction, and to have referred it to justices of the
peace (r). The son of the plaintiff's in equity
was put an apprentice to the defendant for seven
years, but quitted him on being misused; and the
defendant's proceeding at law on a bond given by
the plaintiff; he brought a bill in equity for an
injunction, and for the delivery up of the bond;
and the Lord Chancellor said,
"This is a very
unnecessary suit in this Court, and if I should
take upon me to determine it here, it would be a
vast expense to the masters and apprentices, and
would be assuming a jurisdiction which does not
at all belong me, but by the Statute of Eliz. is left
entirely to justices of the peace, as a matter most
proper
for their determination. The only pretence
for bringing it into equity, is the misuser, and why
cannot this be as well determiued at law? for if
an action is brought by the master, against the
father of an apprentice, for a breach of covenant
in the son's quitting his service, and it should
appear that there has been a misuser of the appren-
tice, I should certainly direct a jury that this is
no breach, for an apprentice may leave his master
upon misuser. The only question is, whether the
misuser is a discharge of the apprentice, which is a
mere matter of law, nor is there the least pretence
for coming into this Court." But with the con-
sent of the defendant, his Lordship decreed, "that
the injunction already granted be made perpetual,

(x) 1 Atk. 518.

and that the bond be delivered up to the plaintiff Return of premium. to be cancelled, and at the same time he ordered the plaintiff to pay the defendant his costs at law, or the action upon the bond, and also his costs in that Court." But where the master is dead, proceedings have been instituted in equity against his executors for a return of premium (y). And if the master become a bankrupt, the apprentiee is to be admitted a creditor for a reasonable proportion of the apprentice fee, where the master is incapable of carrying on the trade (z.)

(y) Finch. Rep. 396.-1 Bott. 563.-1 Vern. 460.Bac. Ab. Master and Servant,

C. ante.

(z) 1 Atk. 149.-1 Bott. 563, ante.

CHAPTER V.

OF APPRENTICES OBTAINING THEIR FREEDOM
AND SETTING UP IN TRADE, OR BEING EM-
PLOYED AS JOURNEYMEN OF THE PENAL-
TIES ON PERSONS WHO HAVE NOT SERVED AN
APPRENTICESHIP SETTING UP TRADE, AND
ON PERSONS EMPLOYING THEM AS JOUR-
NEYMEN, AND OF THE MODE OF RECOVERING
SUCH PENALTIES.

I. Freedom of

a town corporate.

By the due service of an apprentice for seven years, in pursuance of the indenture of apprenticeship, he is enabled to set up in trade for himself, any where in England, except in certain corporate towns, where by immemorial custom, all foreigners, or persons not free of the corporation, are prohibited, as in London, from trading therein.

Wherever, by the custom of any town, borough, &c. the serving an apprenticeship entitles the party to his freedom, the proper officer refusing to. admit him, without sufficient cause, may be compelled to do so by a mandamus (a); and by the 12 Geo. 3. c. 21. it was enacted, "That where any person entitled to his freedom, shall apply to the mayor, &c. to be admitted, giving notice, and spe

(a) Sid. 107.-2 Show. 154.-1 Ld. Raym. 383.

a town corpo

cifying the nature of his claim, and such officer I. Freedom of shall not admit him within a month afterwards, a rate. mandamus shall go, and if he be admitted, such

officer shall pay costs.'

Where to a mandamus

to the Mayor of Oxford, to admit a person to be free of that city, who had served seven years apprenticeship, it was returned, that he put himself apprentice seven years, according to the custom, and that he covenanted to serve seven years, and not to marry within the time; and that within the first two years he married, and so broke his covenant; and that his master accepted of him to serve for the residue of the time; which he did, but not as an apprentice, but rather as a journeyman; though it was urged, that by his breach of covenant he lost his right of freedom, yet the Court held the contrary; and that though an action of covenant might lie, yet that it was no less of his freedom, and therefore awarded a peremptory mandamus to admit him (b). So, where to a mandamus to the Mayor of Lincoln, to admit A. to his freedom, Ire having served an apprenticeship there, the Mayor returned, that A. (being a quaker,) refused to take the usual oath, according to the custom of the said city, but offered to make the solemn affirmation and declaration required by the statute, the Court held this sufficient to entitle him to his freedom, within the Statute 7 and 8 Wm. 3. c. 34. (c); but it should seem, that if, by the custom of the corporation, a party is not entitled to his freedom

(b) Lev. 91.-Sid. 107.Keb. Rep. 458.-Id. 470.659. -T. Raym. 69.

1

(c) 5 Mod. 402.-Carth. 448. S. C.-Ld. Raym. 337. S. C.-2 Burr. 1004.

a town corporate.

I. Freedom of unless he has served as an apprentice to a freeman, resident in the borough, the non-compliance with such custom would be a sufficient return to a mandamus (d).

In general, freemen of corporate towns, who take apprentices, covenant to make their, apprentices free at the end of their time, which they must perform accordingly (e).

in trade, and employment of others in it.

low

II. Setting up AT common law, every person might use or folany trade he pleased, without serving an apprenticeship, and every one was at liberty to employ whom he thought fit (f). If the workman was inartificial, in the execution of the work which he undertook, he was liable to an action for his default, which was considered a sufficient preventative against bad workmanship (g). But it was in earlier times supposed, that this freedom of trade, permitting persons to exercise trades, in which they had little skill or experience, was detrimental to the public, and therefore, with a view the better to train up and enure persons to labour and industry from their youth, and to make them more skilful and expert, we find several ancient regulations restrictive of the common law right of every one to employ himself, and to be employed in any trade or occupation that might be thought fit.

(d) 2 Term Rep. 2.

b. n. 2.-11 Coke, 53.-2

(e) 6 Mod. 227. 260. Ld. Bulstro. 191.-Skin. 133. Raym. 382.

(f) Saund. 312, and id. 6.

(g) Id. ibid. 317.-1 Burr.