738. Rexv. Chaplin, Eafter Term, 7. Will. 3. Comb. 224. Order that ap-Juftices made an order that an apprentice whofe mafter prentice should ferve his mafter's was dead fhould ferve the remainder of his time with his widow's fecond matter's widow's fecond husband. The order was quafhed; bufband not for the juftices have not power to turn over an apprentice, good. and his applying to them could not give them jurif- Comb. 339. diction. cutor shall keep the teftator's 739. Rex v. Peck, Mich. Term, 10. Will. 3. Salk. 66.- Orderof justices, H. took an apprentice in husbandry according to the hat the exe5. Eliz. and died before the time of apprenticeship expired, leaving him impotent and a cripple. The juftices apprentice, of the peace at feffions ordered the executor to keep the quashed. apprentice; but this was quafhed in B. R. because of the great inconvenience that might follow; for it may be the executor has not affets, and lives in another county. -And EYRE, Justice, faid, that an apprenticeship was a perfonal truft between the mafter and fervant, and determined by the death of either of them: and by the death of either of them the end and defign of the apprenticeship cannot be obtained; and it may be the executor is of another trade. He admitted covenant would lie against the executor; but in that there is no inconvenience, because the executor may make his defence by pleading no affets or debts of a higher nature.-HOLT, Chief Juftice, faid, By cuftom of that by the cuftom of London in these cafes, the executor fhall put the apprentice to another mafter of the fame tor fhall place trade'; and that in other places it would be very hard to prentice to ano conftrue the death of the mafter to be a discharge of the ther mafter of covenants: he faid, it had been held that the covenant for the fame trade. inftruction failed, but that he ftill continues an appren London execu teftator's ap tice with the executor quoad maintenance. Adjournatur. Vide 1.Lev.177The executor is liable in covenant if he does not inftru&t. Sid. 216. him, or find him another master. 740. Caiftor v. Eccles, Mich. Term, 13. Will. 3. Ld. Raym. The affignment 683.-A poor child was bound to a mafter at Caiftor, of an apprentice who affigned him to another mafter who lived at Eccles.lutely void, but Judged that he gained a fettlement at Eccles; for though an amounts to a apprentice is not properly affignable, yet that affignment contract, which is not merely and abfolutely void, but amounts to a con- is good by way tract between the two mafters, that the child fhall ferve of covenant. the latter; so that it is good by way of a covenant, but not S. C. Salk. 68. as an affignment to pafs his intereft; like the cafe of affign- 1. Wills. 96. ing a bond, which though it be not affignable in point of intereft, yet it is a covenant that the affignee fhall receive the money to his own ufe. By this agreement the apprentice ferved the time with the fecond mafter, and thereby gains a fettlement. 741. Rex The feffions cannot take ⚫cognizance of an afg ment. ·741. Rex v. Barnes, Eafter Term, 3. Geo. 1. Str. 48.A. is bound out by the juftices to B. who affigns him to C. and the feffions reciting the fpecial matter adjudge the affignment void, and order him to be returned to B.S.C. Foley, 155. PER CURIAM. The feffions had no power to judge of the validity of a deed, or to hinder a man from affigning 2. Stra. 1001. his apprentice. The covenant to provide for him is well Sett. & Rem. ΙΟΙ, performed, if the perfon to whom he is bound out by juftices affign him to another to provide for him; and apprentices bound out by two juftices may be affigned as well as others. Order quashed. 742. The Holy Trinity v. Shoreditch, Michaelmas Term, 3. Geo. 1. Str. 10.-PARKER, Chief Justice, delivered the refolution of the Court. This is an order for the removal of F. from the parish of The Holy Trinity to Shoreditch, by which it appears that F. was bound an apprentice to one Truby, with an intent that he fhould ferve Green, which he did for three years; and it has been infifted that he being bound to Truby, who lives in Trinity parish, his fettlement is there, and not in Shoreditch where the fervice was. But we are of opinion that the juftices have done right in fending him to Shoreditch, where the fervice actually was. It is the fame thing as if Truby had turned him over to Green, in which cafe there could have been no doubt that he had gained a fettlement in Green's parish. The turning over an apprentice is like affigning a deed; in this cafe Truby was only a trustee. 743. Rex v. East Bridgeford, Trinity Term, 13. Geo. 2. Burr. S. C. 133.-Thomas Alt, the pauper, was bound apprentice by indentures, dated 25th May 1727, to William Henftone, of Orfton Webster, for nine years, and ferved him the first four years of the faid term at Orfton. The faid William Henfione dying inteftate and infolvent, his widow (without any adminiftration taken that appears to this court) affigned him over to Edward George, of Staunton Webfter, a certificate- man, for the remainder of the faid term, in confideration of three pounds paid her by George. Pursuant thereto Thomas Alt lived with and ferved George about a year and a half at Staunton, and then George, in confideration of forty fhillings paid him by Thomas Baggaly, of Eaft-Bridgeford, did, with the confent of the faid Thomas Alt, affign over the faid Alt, by verbal agreement, to the faid Thomas Baggaly for the remainder of the faid term of nine years and accordingly Alt lived and ferved out the remainder of the term with T. Baggaly, at EastBridgeford. But it did not appear to the feffions that Henfione's REX ข. FORD. Henftane's widow was at the time of the fecond affignment party or privy thereto; but that the was not until about EAST BRIDGEfeven or eight months after made acquainted therewith, when the very well approved it. The Court of Seffions were of opinion, that Thomas Alt, by virtue of the faid aflignment and fervice, gained a fettlement in EaftBridgeford. The objection to this order was, that the widow of the deceased mafter had no legal intereft in his apprentice, the not having taken out any letters of adminiftration, nor had any kind of authority to make fuch affignment, and confequently the fecond affignment of him made by her affignee is totally invalid and nugatory. Upon fhewing the caufe, it was faid, that though the widow did not take out formal letters of adminiftration, yet The appears to have been executor de fon tort; and executor de fon tort may do legal acts, and an apprentice may gain a fettlement under affignment even by parole only (a). (a) 1. Salk. 65. Moreover this apprentice muft be either under the power Rex. Barnes. of the executor de fon tort, or be fui juris. Now if the Ante, p. 521. former, the affignment is good; if the latter, then an pl. 740. agreement by a perfon fui juris to ferve for three years and a half will bind him.-THE COURT allowed this, and obferved, that though an affignment of an apprentice is not a ftrictly legal tranfaction, because the perfon of a man is not frictly and legally affignable, yet it has been an equitable conftruction, that where an apprentice has lived forty days under an affignment, he thall thereby gain a fettlement because of the confent. Caiftor. Eccles, mere perfonal in his life-time, except by cuf 745. Baxter v. Burfield, Eafter Term, 20. Geo. 2. MSS. 2. The intereft of a -Debt upon bond for performance of indentures of ap- master in his apprenticeship: plea, condition performed: breach affigned, Prentice is a that the defendant being put apprentice to the plaintiff's truft; and the hufband, who was dead, he refused to ferve his executrix. indentures not The plaintiff, by a proteftation in the replication, was being affignable alledged to carry on the fame bufinefs of a mariner by herfelf and fervants. Demurrer and joinder.-This having tom, and with been twice argued, LEE, Chief Justice, now gave the opi- the consent of nion of the Court, that the executrix could not maintain the apprentice, this action; for, FIRST, It appears by words of covenant the master's exthat it was only to ferve with the mafter, and no mention maintain debt of "executors or adminiftrators." SECONDLY, From the on a bond for nature of the covenant; for covenant between master and performance of apprentice implies he fhall only ferve the mafter, for he is the covenant of the only perfon he is bound to; and fo it is determined in the cafe of Coventry v. Woodhall (a). And though it is faid that a mafter has an intereft in his apprentice, yet it named. is not fuch a one as a perfon has in lands or chattels, which (a) Hob. 134. ecutors cannot the indenture, unless his exe cutors are Ante, page 508. pl. 710. (c) 1. Lev. ported. BAXTER is transferrable, but is an intereft coupled with a perfonal BURFIELD. truft annexed to the perfon of the mafter, which cannot be affigned, and is gone by his death, like the case of a (a) Vaugh.183. guardian (a). THIRDLY, Another reafon why the ap3. Keb. 519. prentice is not bound to ferve the executor is, because the Apprentice not covenant to inftruct is perfonal and dies with the mafter, bound to ferve and cannot extend to the executors, who may not be cathe executors of pable of inftructing (6). The intereft the mafter has in his late mafter. his apprentice is a right to his fervice only, as appears by. () 1. Keb.820, the cafe of Hall v. Walker (c). Apprentices how far af1. Sid. 216. fignable is a fingle cafe, and certainly is not law; as appears by 1. Salk. 68. And there was afterwards another (4)Hilary Term, cafe in this court of Herns v. Drake (d). Debt on bond to 8. Ann. not re- ftand to an award that an apprentice should be affigned; and the award was held bad, for an indenture of an apprenticefhip is not affignable by law or equity unless it be by custom, and then by the mafter during his life; and even then not without the confent of the apprentice. If therefore a mafter cannot affign during his life, because his indenture is fiduciary, it is abfurd to fay he shall do it by his death. There is a great difference between a covenant to maintain and a covenant to inftruct (c); for the first is a lien upon the executor, though not named in right of the teftator's affets being come to his hands; but the other is a (d) Cro. Eliz. fiduciary truft annexed to the perfon of the mafter (d). In Wentworth's "Office of Executor" it is faid that apprenticeship is gone by the death of the master, and that he is not bound to ferve the heir or executor. We therefore are of opinion, upon the whole, that the covenant to ferve is confined to Baxter only, as there is no mention of his executors or adminiftrators; and that the intereft in the apprentice is a mere perfonal truft, not affignable in the life of the mafter, either in law or equity, except by cuftom and with confent of the apprentice; and if not affignable in his life, is not transferrible to his executors; and therefore the plaintiff cannot maintain her action. Judgment for defendant. (c) Vide ante, pl. 735. 553. An apprentice ship being a the indentures are determined by the death of either of the 745. Rex v. Eakring, Easter Term, 26. Geo. 2. Burr. S. C. 320.-The pauper was bound apprentice in Eakring perfonal truft, by parish indentures, till he fhould be twenty years of age. About three years before that time he ran away from his mafter, who died in June 1749. In the following year he hired himself as a fervant, and ferved for a year at Scifon. At Martinmas 1750, he hired himfelf for another year, and ferved that year alfo at Selfon, and received all his wages for his own ufe; the executors of his first mafter taking no notice of him. He did not attain his age of twenty years till January parties. 1750.-MR. TAYLOR WHITE moved to quafh the (4) 1. Salk. 66. order of feffions, upon the authority of Rex v. Peck (a); Ante, page 521. in which EYRE, Chief Justice, faid, that apprenticeship is Pl. 739. a perfonal truft between the mafter and fervant, and is determined by the death of either; and this cafe was allowed to be authority by the Court. 66 66 .46 VIII. Of exercising a trade. ccpt he hath 746. By 5. Eliz. c. 4. f. 31. "It is enacted, that after None may ufc "the first day of May next coming, it fhall not be lawful any manual oc"to any perfon or perfons, other than fuch as now do cupation, exlawfully use or exercise any art, mystery, or manual been apprentice occupation, to fet up, occupy, ufe or exercife any craft, to the fame. mystery, or occupation now ufed (a) or occupied stat. 31. Eliz. 5. "within the realm of England or Wales, except he fhall 2. Bulftr. 186. "have been brought up therein feven years at the least 3. Bulstr. 179. "as an apprentice, in manner and form abovefaid; nor "to fet any perfon on work in fuch mystery, art, or oc"cupation, being not a workman at this day, except "he fhall have been apprentice, as is aforefaid; or else having ferved as an apprentice, as is aforefaid, fhall or "will become a journeyman, or hired by the year, upon "pain that every perfon willingly offending or doing the "contrary, fhall forfeit and lofe for every default forty "fhillings for every month." 66 66 may fet up without having 747. By 15. Car. 2. c. 15. f. 2. "It fhall and may be Certain trades "lawful for any perfon or perfons whatsoever, native or excepted; in which perfons "foreigner, freely, and without paying any acknowledgment, fee, or other gratuity for the fame, in any place of England or Wales, privileged or unprivileged, corporate ferved seven "or not corporate, to fer up and exercife the trade, occupa- years. "tion, or mystery of breaking, heckling, or drefling of "hemp or flax : AS ALSO, for making and whitening of "thread: AS ALSO, of fpinning, weaving, making, whitening, or bleaching of any fort of cloth whatfoever, made "of hemp or flax only: AS ALSO, the trade, occupation, or mystery of making of twine, or nets for fishery, or of "ftoving of cordage: AS ALSO, the trade, occupation, or "mystery of making any fort of tapestry hangings; any "law, ftatute, or ufage to the contrary in anywife not"withstanding." (a) That is, on the 12th day of January 1562, when the parliament in which this ftatute paffed began; and therefore this restraint shall not extend to new arts and myfteries in- |