BITANTS Of TON. one year and a half; and then the faid indenture was Rax v. INHAdeflroyed, by confent of the master, the father, and the APPRENTICE. The pauper, within half a year afterwards, bound himself apprentice by indenture, with his father's confent, to Thomas Maydlin of the parish of Bulkington in the faid county of Warwick, for seven years; and ferved the faid Thomas Maydlin in the faid parish of Bulkington, under the faid laft mentioned indenture, four years; and then this indenture was destroyed by consent of the faid Thomas Maydlin the mafter, the father, and the APPRENTICE. The pauper, after this, returned into the faid parish of Chilvers Coton, and bound himself apprentice, by indenture, to one Shaw in the faid parith of Chilvers Coton, for two years, and duly ferved the faid Shaw in the fame parish, under the faid laft-mentioned indenture, the whole of the faid two years. LORD MANSFIELD. The fingle queftion is, Whether the indenture of apprenticeship in Bulkington was void, or not; there having been a former indenture; but fuch former indenture having been cancelled, by agreement between the mafter, the father, and the apprentice? The cafe of Austrey (a), though very correctly (I believe) (d) Burr. S. C. reported, might probably mislead the juftices; by their 441. and ante, not attending to the circumftances of the particular cafe, P. 463. pl. 649• to which the general words there made ufe of were to be applied. They feem to have understood them in their abfolute and general fenfe, without confidering their particular application to the cafe then under confideration; which was the case of a parish-apprentice, where the parish and the public are interefted. The child was legally bound out by the parith-officers till he should be twentyfour; and the indenture was duly approved by two juftices. The mafter, in confideration of 40 fhillings paid to him by the apprentice, agreed to difcharge him; and delivered up the indenture to the apprentice. The question was, Whether the parish-officers, who bound him out under a special authority, ought not to have been confulted about discharging him, and to have given their confent to it? The whole policy of the 43. Eliz. c. 2. f. 5. might be defeated, if the mafter and parish-infant apprentice could by their joint confent alone, without the confent of the parish-officers, difcharge such a contract, and fet the apprentice free from it. Such a conftruction would evade and invalidate this law. That cafe, therefore, is not applicable to the present. Here, the original contract was only between the father, the master, and the apprentice: and all of them confent to the discharge. An infant may make his condition better; though he REX V. INHA- can't make it worfe. The reafon why an infant may BITANTS of bind himself apprentice is, because it is for his benefit. WEDDING- If he was difcharged of the former indenture, he was at TON. liberty to execute another. The cafe of St. Mary Kallen(a) Burr. S.C. der (a) is in point: 1 fee no diftinction that can be made between it and the prefent cafe. The indentures were p. 642. pl. 646. exchanged between the father and the mafter, by confent 274. Ante, When a mafter receives money to vacate his indentures, the relation is diffolved, though the indentures remain uncancelled. of the apprentice, who was clearly then under age. And Lord Ch. J. LEE fays, "The indentures did not fubfift; because the exchange of the indentures amounted to a cancelling of them, and a determination of the apprenticeship under them."-MR. JUSTICE ASTON was abfent.-MR. JUSTICE WILLES and MR. JUSTICE ASHHURST Concurred with LORD MANSFIELD.-Rule made abfolute.-Both orders quafhed. 652. Rex v. Juftices of Devonshire, Trinity Term, Cald. 32. 17. Geo. 3.-MR.BULLER had moved for amendamus to the of his appren- juftices of the county of Devon, to hear an appeal to an ortice of full age der of removal of John Crook, Elizabeth his wife, and their four children, from the parish of Witheridge to the parish of Puddington, both in the county of Devon. The juftices at the feffions had refused to enter into it, as one feffions had intervened fince the removal. The facts as appeared upon the affidavits were, that the order of removal was dated October 21, 1776; in November the pauper was removed. Some time afterwards it was agreed between the two parishes, that the queftion thould be decided by the opinion of HEATH, Serjeant; provided fuch opinion were given on or before the 14th of January, the feflions beginning on the 15th. It was alfo agreed, that no other inftructions fhould be given to the counfel, than the examination of the pauper, which was: That he was born in the parish of Witheridge, and about the age of feven years was bound to Richard Ekworthy. of Witheridge, with whom he lived till twenty-one; and then made an agreement with his mafter to give him one guinea to difcharge him from his apprenticeship. That the faid Richard Elworthy gave him a difcharge under his own hand. That after different fervices he gained a fettlement by hiring and fervice under Rebert Salter, in the parish of Puddington, if he was fo far difcharged from his apprenticeship by the above ftated tranfaction, as to be capable of gaining a fettlement by hiring and fervice. On the roth of January the opinion was given; and was, "That if the indenture of apprenticeship remained in "the matter's hands uncancelled, the apprenticeship ftill "continued; and the agreement was no diffolution "thereof, VONSHIRE. thereof, but only a licence to the apprentice to ferve REx v. Jus "where he pleased." On this day the officers of Withe- TICIS of D2ridge told the officers of Puddington, that, as the opinion was not decifive, they muft inquire of the mafter, what had become of the indenture. At the feffions on the 15th, no appeal to the order of removal was entered. At the Eafter feffions following, the parifh of Puddington appealed; but the juftices refuted to enter into it, as not being in time. BULLER having early in the Term inoved for the mandamus, on the ground, that, under the agreement, the opinion in favour of the parish of Puddington was conclufive; and that the parish of Puddington had appealed in confequence of objections raifed to this decifion fubfequent to the Epiphany Seffions; and therefore that the ftatutable limitation of appeal to the next feflions ought, during the time the parties were under terms of compromife, to be fufpended; now, on the last day of the Term, FANSHAWE and MILLES fhewed caufe; and having fully fatisfied the Court upon the fact, of the appeal having been prevented in confequence of the objection not having been raifed previous to the Epiphany feffions-LORD MANSFIELD. As both parties had agreed that this queftion fhould be fubmitted to counfel, and that his opinion fhould conclude (a), though the Court (a) Vide Rex v. does not quite agree with the counfel in point of law, the juftices of they would not, had the opinion been pofitive, have Northampton, granted the mandamus. Upon the point of law, I am of Cald. p. 30. opinion, that if the indenture had not been destroyed, but remained in the mafter's hands, the apprentice would yet have gained a fubfequent fettlement in Puddington. The mafter received a guinea of his apprentice, then at full age, for the exprefs purpofe of vacating the indenture. Why, could the mafter, after this, have used the indenture against the apprentice? So far from it, that the apprentice might have brought an action against the mafter for it. But the opinion of the counfel was hypothetical only, and upon a ftate of facts at the time not fettled and fubmitted to him by the parties. The cafe therefore might be confidered as open to the interpofition of the Court. But the merits of the cafe appearing to be clearly against the party applying, the Court, to prevent further litigation and expence, refufed the rule; and, on account of fome mifconduct with refpect to the affidavits Jaid before the Court by the profecutors of the rule, directed that it should be difcharged, with cofts out of pocket. Mandamus denied. he binds himself an apprentice for fix years only, are not void, though the 5 Elis c.4. requires the binding to be for seven years. (a) NOTE, he had run away twice before. Indentures exe- 653. Rex v. Evered, Trinity Term, 17. Geo. 3. Cald.26. cuted by an in- Two juftices committed Rovert Collchall, an apprentice, to fant, whereby the Bridewell of the town of Shepton Mallet, in the county of Somerfet, for running away from his mafter. He had been bound, when an infant, for fix years by indenture; and being now of age, he ran away, alledging afterwards that he did fo with an intent to avoid the apprenticeship, made when he was an infant, and to his prejudice (a).HEATH, Serjeant, had moved for a rule to thew caufe why he should not be difcharged; and, to avoid delay and exPence, it was agreed that the rule fhould be so taken, with liberty to the Serjeant to take all objections against the form of the commitment, as if it had been returned on a habeas corpus: and he now in fupport of it objected to the uncertainty of the commitment, which ran thus: "as an "apprentice, or fervant, for difobeying his indentures or "articles" and he infifted, that this being in the difjunctive could not be fupported, becaufe juftices have not a power to commit fervants generally, though they may commit fervants of a particular defcription: that the binding here, being only for fix years, is contrary to the flat. 5. Eliz. c. 4. f. 26. which requires it to be for seven years at the leaft: that by fect. 41. all indentures otherwife made are void; and that it would be ftrange if it were not fo, as no one can exercise a trade without apprenticeship for feven years. That at common law, an infant could make no contract but fuch as was voidable, though for his benefit: that upon this ftatute, LORD (a) Burr. S. C. HARDWICKE and the Court, in the cafe of (a) the King v. the Inhabitants of St. Nicholas in Ipfwich, had exprefsly adjudged, that fuch an indenture was voidable by the parties: that the apprentice had in the prefent cafe done every thing in his power to avoid the indenture, having left his mafter, and faid, he would live no longer under his controul: and that it would be extremely hard, that he fhould be fubjected to punishment, only for afing that liberty and exercising thofe rights that the law gave him.-DUNNING and BULLER infifted, against the rule, that the apprentice, who had fubmitted to the indenture as long as he derived any advantage from it, and till he had learnt his trade, fhould not be permitted to defert his fervice as foon as he became useful in it: that this conftruction of the contract would be injurious to the mafter; but that the contract at the time of its commencement, which was during infancy, the time at which almost all apprenticeships are entered into, was beneficial to the infant; and, being fo, might legally be made, and therefore could not be abandoned: and they contended 91. S. C. 2. Str. 1066. Ante, p. 461 pl. 644. REX 2. EVERED. pl. 644. contended that, though the warrant ran in the dif junctive, yet, as he now ftated himself to be an apprentice, he was under that description liable.-LORD MANSFIELD. It has been adjudged, that an infant may bind himself for his own benefit: and it is fettled in the cafe in Strange (a), that a binding for four years gives a fettlement. (a) Rex v. -ASTON, Juftice. Suppofing the indentures voidable, I St. Nicholas, cannot conceive that the apprentice's running away can 2. Stra. 1066. avoid them. Had he ferved regularly, and during fuchte, p. 461. service declared his intention to depart, it might have been different. Here he would make ufe of his offence in order to avoid the punishment that attends it; but it is too late to do it before a justice, whee charged with a crime.-WILLES and ASHHURST, Juftices, being of the fame opinion, on this ground the rule would have been difcharged: but, as upon a return to a habeas corpus, LORD MANSFIELD faid, that the objection to the warrant of commitment, as running in the disjunctive, must undoubtedly have prevailed, the counfel for the profecution confented to the prifoner's discharge. under 5. Eliz. See the cafe of 654. Branch v. Ewington, Mich Term, 21. Gen.3. Doug/.518. In a common -Action of covenant on an indenture of apprenticethip, indenture of ap. by the master, against the father of the apprentice. The prenticeship, indenture, as ftated in the Declaration, was in the com- c. 4. between mon form, under the ftatute of 5. Eliz. c. 4.; the plain the father, fon, tiff exprefsiy covenanting to find the apprentice meat and and mafter, the lodging, the defendant to find him cloaths and washing, ther is anand the apprentice, that he would ferve faithfully, &c. what is to be and for the true performance of all and every of the faid performed by covenants, each of the faid parties bound himself to the the son. other. Branch affigned, that the apprentice had abfented himself from the fervice.-General demurrer.---PECKHAM, in fupport of the demurrer, contended, that the parties were only bound for the exprefs covenants which they had feverally entered into. That it would be ab- Whitley . furd to conftrue the general words fo as to render the de- Loftus, ante, fendant liable for breaches of fuch of the covenants as P. 459. pl. 643• were to be performed only by the fon. The fame conftruction would render the father liable to the fon, or the fon to the father, for thofe which the mafter was to perform. In all covenants, the intention is to govern. The mafter has other remedies befides an action of covenant against the apprentice, if he abfent hinfelf. He may, by application to the juftices, have him punished, under 5. Eliz. c. 4. § 35; or, if he wants compenfation for the lofs of fervice, he may compel him to ma e it up by fubfequent fervice, under 6. Geo. 3. c. 25. If the conHh3 ftruction |