LOFTUS.

WHITLEY. ther of the apprentice and the apprentice of the one part. and the mafter of the other part, mutually covenanted and agreed, &c. The action was brought jointly against the father and fon, on the breach of a covenant by the fon faithfully to account at his master's requeft for all fuch of his master's goods as should come to his hands. After verdict for the plaintiff it was moved in arreft of judgment, that as this was a joint action, and the breach was affigned against the fon only, the plaintiff could not maintain his judgment. Neither ought the action to be brought against the father, for he did not covenant that the fon fhould truly account, &c.; he only covenanted for himfelf feparately to pay the money which he was to give to the plaintiff for taking the fon apprentice; and the claufe in the latter end of thefe indentures is in the fingular number, viz. that each of them (the father and fon) bind himself for the true performance thereof; fo that the father cannot properly be faid to be bound for his fon, but only for himfelf. It was argued on the other fide, that this was a covenant entered into by the master on the one part, and by the fon with the confent of his father on the binding part, but by both father and son as to all other purpofes; for although the fon is only bound apprentice, yet they both covenant for the true performance of all covenants; the words in the clofe of the articles being," that each of them binds himfelf, &c. "for the true performance of all the covenants and agree"ments therein mentioned:" and even from the nature of thefe covenants the father is always bound for the fon; for otherwife mafters could not rely on the covenants of their apprentices, who are commonly under age, and fo not capable to confider what covenants to make; and therefore in this cafe the father shall be taken to covenant for the performance of his fon's part as well as his own. -THE COURT was of opinion, that the very end of binding the father was to anfwer the wrong which might be done by the fon to his mafter, therefore he, the father, must be obliged for his fon's true performance of the articles. It is true, that, at the end of the articles, the covenant is in the fingular number, and it must be fo where the fon is bound to perform the thing for which the covenant is made: this claufe is ufually inferted that the covenants may be taken diftributively, viz. that each of the covenantors fhould perform his part; and this makes the covenant of the fon bind the father who covenanted for him as well as for himfelf,-So the plaintiff had judgment.

644. Rex

makes all ap

corporate towns

644. Rex v. Inhabitants of St. Nicholas in Ipfwich, Mich. Although the Term, 10. Geo. 2. Burr. S. C. 91.-The queftion was, 5. Elix. c. 4 Whether a perfon bound an apprentice in a corporate prenticeships in town or city for a lefs time than feven years, gains a fettlement there, by fuch binding and fervice under it? for lefs than LORD HARDWICKE. This cafe depends upon the 26. feven years void, and 41. fections of 5. Eliz. c. 4. by the firft of which, tor a less time apprentices may be retained in corporate towns for seven are voidable years at the leaft; and by the latter fection, all indentures, only as between &c. of apprenticeship otherwife than by this ftatute or the parties. dained and limited, are declared to be void in law, to all s.c. Stra. 1066.

yet indentures

intents and purposes (+). I am of opinion that the latter †) Vide ante, claufe does not make fuch indenture void, but only void- p. 451. pl. 620. able by the parties themfelves, and by them only. There and p. 456. are many cafes, where, according to the ftrict words of pl. 633. the statute, a thing is made void, yet has been held not to be abfolutely void, but only voidable; as in Whinchcomb v. Winchester (a), and Barber v Dennis (b). The prin- (a) Hob. 166. cipal objection to this binding is founded on the deter- (6) Salk. 6. mination of Guerden v. Leyland (c), where the indenture 5. Med. 69. (c) Post, was holden to be abfolutely void for want of being sea, IV. ftampt. But the ftatute 8. Ann. c. 9. not only declares that all fuch unftamped indentures "fhall be void," but further adds, "and not available in any court or place, "or to any purpose whatsoever;" and there is a fubfequent claufe, that no fuch indenture fhall be admitted. as evidence in any fuit to be brought by any of the parties thereto, unlefs fuch party in whofe behalf it is produced fhall make oath, that the whole fum really given with the apprentice was truly inferted. And yet the order of feffions in that cafe was grounded upon the indenture which was not stamped, nor was the duty paid. The ftatute 5. Eliz. c. 4. rather refpects the particular advantage of corporations than that of the public in general, and therefore it would be inconvenient to make too rigid a construction of it; which was likewife the opinion of the other Judges.

prenticeship, al

645. Rex v. Stratton, Eafter Term, 21. Geo. 2. Burr. S. C. An agreement 272-Stephen Petherick, at the age of fourteen years, was to execute in by his mother (being then a widow) placed as an ap- dentures of apprentice with his brother-in-law John Petherick, by trade though the fera cordwainer in the parish of Stratton, for fix years, to vice is performlearn the faid trade; but at the time of placing him as ed, and the writ aforefaid, no indenture of apprenticeship was executed. ings were preThe mother agreed to pay to his mafter 41. in hand, and pared is not a 41. at the end of three years, and his mafter was to find ing under 5. him in meat, drink, washing, and lodging, during the Eliz. c. 4.

fufficient bind

REX v. faid fix years, and his mother was to find him in clothes STRATTON. during the faid term; all which was performed accor

Exchanging the

indentures is equivalent to

dingly and the faid Stephen Petherick believes, that in or about the last year of the faid term one part of an indenture was prepared, in order to bind him an apprentice to the faid John Petherick, purfuant to the faid contract or agreement. But he doth not remember that he executed the faid part, or that it was executed by his mother, and the faid John Petherick, or either of them, nor what is become of the faid one part. It was moved, that all this doth not amount to fuch a binding as will gain a settlement, there being no indenture duly executed.-The COURT feemed to think this exception too ftrong to be anfwered; and made a rule to fhew caufe: which rule was afterwards made abfolute without defence.

646. Rex v. Inhabitants of St. Mary Kallender, Trinity Term, 21. & 22. Geo. 2. Burr. S. C. 274.-John Miles the selling them, pauper was twenty-fix years ago bound apprentice for faven years to John Gregory of St. Michael's parifh, and ferved there accordingly for five years; and then left his mafter. The indentures were afterwards exchanged between the mafter and the apprentice's father by confent of the apprentice. About one year afterwards, the father of the faid John Miles contracted with William Stockdale of Twyford for binding the faid John Miles apprentice to him for four years, and in confequence of that agreement John Miles went to William Stockdale on trial, and lived with him a year and three quarters in Twyford. But no indentures were executed, nor other agreement made.--LORD CH. J. LEE. There can be no ground to confider this as a fettlement at Twyford, but upon the fuppofition that the first indentures fubfifted, and that the fervice at Twyford was under them. But the exchange of the indentures certainly, in law or equity, which are the fame in this cafe, amounted to a cancelling of them, and a determination of the apprenticeship under them.

prentice to a

fettlement

parole binding 647. Rex v. Inhabitants of Mawnam, Hilary Term, 22. is not fufficient Geo. 2. Burr. S. C. 290.-Jane Mawnam was put out as to entitle an ap- an apprentice on a parole binding, no indentures, or agreement for indentures, having been drawn.-MR. HENLEY where he ferves contended that the ftatute 3 and 4. Will. and Mary, c. II. f. 8. exprefsly requires that the binding fhall be by indenture.-MR. FORD, of counfel on the other fide, owned it could not be supported.

bis time.

Burr, S. C. 540.656.

648. Cafe

ifted, unless by

that the beard

that he was

within the fta

648. Cafe of St. Saviour's Southwark, Trinity Term, Indenture not 23. Geo. 2. MSS.-Order ftates, that Jofeph Hutt, born in proved to be loft the parish of St. Thomas in 1718, lived with his father in nor to have exSt. Helen's till 1733; and that his mother gave evidence the mother of of his being bound apprentice by indenture to his father the apprentice, in St. Helen's in 1733, as the was informed by the father; who declared that she never faw the indenture, but that it was reputed his father fay to have been delivered to the father. It appeared that Jofeph ferved his father in St. Helen's till 1738, when the bound to him father died, and that the father always found him in clothes: by indenture, is That in 1748, Jofeph was applied to at St. Helen's to not fufficient to know if he had any indenture, when ffeph faid, he could make a binding not find it: That no evidence was given of its being loft, tute. nor was it produced: That Jofeph rented a houfe at 51. S. C. Burr. per ann. in St. Helen's, and was rated to the land-tax, Seff. Caf. 292. and not to the poor's rate, and that he was employed by and 735. his father. Two juftices removed fofeph and his wife, and four children from St. Saviour's to St. Helen's. . Upon appeal, the feffions ftate it specially as above; and it was excepted in K. B. that no parole evidence ought to be admitted of an indenture: and PER CURIAM, The indenture is what the mother was informed of, and it is a question whether the fact be fufficient to bind the pauper within the act. The facts flated do not warrant the determination of the juftices. And befides, it appears that he ferved only five years under an indenture, not proved to have existed, nor to be loft. Order quafhed.

rish indentures,

649. Rex v. Aufiery, Hilary Term, 31. Geo. 2. 2. Burr. Indentures are S. C. 441.-An apprentice who was bound till he fhould not cancelled by attain the age of twenty-four years, was by a formal agree-livered up to an their being dement between his mafter and himself difcharged from his infant apprenapprenticeship, and the indentures delivered up. The ap-tice. prentice, being then under twenty-one years of age, See Rex v. was then regularly hired by a third perfon in Auflery, Langborne post. and ferved for a year.---LORD MANSFIELD. Being as to the canunder age, his confent was out of the cafe, and is exactly ceiling of paupon the fame foot as if he had given no confent. His fubfequent fervices then, under the hirings ftated in the order, cannot be confidered as performed by the mafter's leave and confent, and fo being a fervice of his matter under the indenture; becaufe this is no exprefs leave and confent of the mafter to the particular fervice, but was intended to be quite general, and was even founded on a miflaken apprehenfion, that the apprentice could confent to his being discharged, which being an infant he could not do. Order was quashed.

650. Rex

No agreement whatever will

cuted.

1. Mod. 328.

650. Rex v. Whitchurch Canonicorum, Trinity Term, 5. Geo. 3. MSS.---John Gay, when he was of the age of conftitute an apprenticeship, twenty-two years, AGREED with William Burridge, a unlefs there are ftone-mafon, to bind himfelf apprentice to the faid indentures exe. Burridge for the term of fix years, and that Burridge fhould, during the term of his apprenticeship, provide for him meat, drink, wafhing, lodging, and clothing; and that the faid John Gay fhould live with and work for him, as his apprentice, in his faid trade during that term; and that indentures fhould be executed between them accordingly but no fuch indentures were ever executed. The faid John Gay, immediately after the faid agreement was made, went to live with the faid William Burridge, and worked for him as an apprentice in his trade for five years and upwards, in the faid parish of Wotton Fitz-payne, and was alfo fometimes employed by the faid William Burridge in hufbandry bufinefs; of which the faid John Gay complained to the faid William Burridge as contrary to the faid agreement, by which the faid John Gay was to work for the faid William Burridge in the trade of a ftone-mafon. The pauper, before the expiration of the last year of the faid term, married, and left his mafter, with his mafter's confent. There never was any other contract or agreement between the pauper and the faid William Burridge. No wages were ever paid by the faid William Burridge to the faid John Gay: but a little pocket-money was fometimes given to him by the faid William Burridge. The faid William Burridge and John Gay always confidered themselves as mafter and apprentice: but as no indenture was ever executed between them, they thought that they were at liberty to part when they pleated. And when the faid John Gay complained to the faid William Burridge," that he ought not to be employed except in his bufinefs of a stone mafon," the faid William Burridge told the faid John Gay," that he might go away if he pleafed."-THE COURT. The objects. of taking an apprentice and having a fervant are diftinct, and cannot be converted one into another. The cafe of Rex v. St. Mary Kallender (a) is in point. Gay cannot P.462, pl. 645. be confidered an apprentice because there is no indenture.

6) Ante,

An apprentice 651. Rex v. Inhabitants of Weddington, Trinity Term, 14. difcharged of Geo. 3. 2. Burr. S. C. 766.-Thomas Lawrence, the pauper, gne indenture being then of the age of eight years and a half, bound himMay be again felf apprentice by indenture,with his father's confent, who sice by another. was a party to the indenture, to William Meigh of the faid parish of Chilvers Coton, for feven years; and ferved him in the faid parish of Chilvers Coton under the faid indenture

bound appren

one.