Of course a parol binding cannot constitute an apprenticeship. Rer v. Mawman, Burr. S. C. 290. 1 Bott, 634. Rex v. Ditchingham, 4 T. R. 769. 2 Bott, 505. III. (2.) Df the necessary Parties; and of Execution by them. infant. In the special case of a parish apprentice, he may be bound The apprentice without executing the indenture. (See infrà, and Rex v. Nicholas must be a party, in Nottingham, 2 T. R. 726. 2 Bott, 502. Rex v. Woolstanton, and execute the 1 Bott, 707.) But in ordinary cases, the person to be bound, deed, though an even though an infant, must be a party to the deed, and must execute it. Rex v. Chesterfield, 1 Bott, 625. 2 Salk. 479. Rex v. Cromford, 8 East, 25. By the common law, a father had no authority to bind his infant son apprentice without his assent; consequently, where the indenture is executed by the master and the father, but not also by the apprentice, it is invalid. Rex v. Arnesby, 3 B. & A. 584. Nor will it be considered as tantamount to execution by the apprentice, that he has taken the benefit of the deed by serving under it. Ibid. So an indenture will not be binding, if the apprentice, being of full age, though assenting to the binding, does not execute the deed. Rez v. Ripon, 9 East, 295. good, though Rer v. Quainton, H. 54 G. 3., 2 M. & S. 338. Bott, Cont. 16. Indenture reRemoval from Quainton to Bicester-Market-End quashed, sub- citing certain ject, &c. The pauper on the 23d of November 1811, being then trustees to be a poor boy, aged thirteen, of the parish of Quainton, was, with parties, held the consent and approbation of the trustees (created by the will of not executed by Lady Say and Sele, for the purpose of yearly putting out a cer- the trustees. tain number of poor boys apprentices), bound apprentice to J. Adams of Bicester, for seven years, for the consideration of 201., stated in the indenture to be paid to Adams by the said trustees, who were also recited to be parties to the said indenture; but it was only executed by the pauper and Adams. The pauper served under the indenture at Bicester more than forty days. One of the questions for the opinion of the court was, whether the indenture was void on account of the trustees not having joined in the execution. Lord Ellenborough C. J. said, Upon that point, it appeared that the money was paid out of the funds of the public. charity, and that it was paid by the trustees in the execution of their trust; and that they acted very wisely not to involve themselves by becoming parties to the covenant. Rer v. Fleet, Cald. 31. 2 Bott, 500. This was a question of Non-execution settlement, and it appeared that the pauper, a parish appren- by the master. tice, was bound by indentures; that the original indenture was properly executed by the parish officers, and allowed by two justices. The counterpart was also allowed by the justices, but neither the indenture nor counterpart was executed by the master. The master accepted the indenture and the pauper, and considered him as his apprentice. And upon this case there arose a question, whether it was necessary under 8 & 9 W. 3. c. 30. § 5. (post, § VI.) that the master should have executed a counterpart to enable the pauper to gain a settlement?-Lord Mansfield C. J. said, the binding was authorized by 43 Eliz. c. 2. § 5. long before the act requiring a counterpart; that the statute of W. 3. only compelled persons to receive poor apprentices, but did not in other 56 G.S. c.159. Approval of justices, where some expense has been incurred by the parish. 5 Eliz. c. 4. $26. The stat. 5 Eliz. c. 4. relates only who bind them- respects confirm the power of binding, which was already fully established. Aston J. said, that it had been so determined in Rex v. St. Peter's on the Hill, 2 Bott, 495; in which last case it was decided, that if the apprentice himself be bound, the execution by the master is not actually necessary, but the indenture shall be valid without it. S. P. by Le Blanc J., in Rex v. Rib. chester, 2 M. & S. 139. By stat. 56 G. 3. c. 139. § 11., an indenture of apprenticeship, to which the parish officers are not parties, but by reason of which any expense has been incurred by the public parochial funds, must be approved by two justices under their hands and seals. (The cases on the construction of this statute will be considered hereafter, in conjunction with the subject of parish apprentices generally, in § Vİ.) III. (3) Df the Time for which the Apprentice must be bound. The statute 5 Eliz. c. 4. § 26. directed the binding of apprentices to be by indenture for seven years at the least. And § 41. declares that all indentures, &c. for the having, taking, or keeping of any apprentice, otherwise than is by that statute ordained, "shall be clearly void in the law to all intents and purposes." But it has already appeared that by stat. 54 G. 3. c. 96. (see antè, p. 137.), that provision, among others contained in the same statute, has been repealed. And even before the stat. 54 G. 3. it was held, that the statute of Elizabeth only rendered indentures, by which the party was bound for less than seven years, voidable by the parties themselves, and not void. St. Nicholas v. St. Peter's, Ipswich, 2 Stra. 1066. Burr. S. C. 91. 2 Bott, 493. Rex v. Evered, Cald. 26. 1 Bott, 638. S. C., cited by Lord Ellenbo rough in Gray v. Cookson, 16 East, 27. (a) Smedley v. Gooden, M. T. 55 G. 3., 3 M. & S. 189. An action of covenant upon articles of agreement made between the defendant and J. Gooden, his son, of the one part, and the plaintiff of the other, for the taking and keeping by the plaintiff of the said J. Gooden as his covenant servant in his trade of a hosier, for the term of five years, and the articles contained the usual covenants to be found in indentures of apprenticeship, and the plaintiff assigned for breach that J. Gooden absented himself from his service during the term. After oyer of the articles, the defendant pleaded non est factum; and also that the articles were made for the term of five years, contrary to the statute, whereby they were void. Demurrer to the last plea. Joinder. In support of the demurrer, it was contended, that the articles were not void by the stat. 5 Eliz. c. 4., by reason that they were for a less term than seven years, but voidable only; and the opinion of Lord Hardwicke in Rex v. St. Nicholas, Ipswich, Burr. S. C. 91., was cited; and that here the absenting himself from the service did not amount to an avoidance. (See Gray v. Cookson, infrà.) The court interposed, by inquiring whether it appeared in any part of the record, that J. Gooden, the son, was an infant at the time when the articles were entered into; for if he was an adult, the statute, which relates (a) See the observations of Ld. Tenterden on these decisions, in Rex v. Gravesend, 3 B. & Ad. 245. With respect to the means by which voidable indentures may be avoided, see infrà, p. 153–156. only to persons under age, could not affect this contract; and this would be an answer to the plea in limine. - Lord Ellenborough CJ Can it be maintained that the stat. of Eliz. was intended to limit the powers of an adult to contract for his labour? The statute may perhaps be thought capable of a variety of bad interpretations, but it is to a considerable degree defunct; and I do not think it can be successfully argued, that one of its meanings was to restrain the binding, or, I should rather say, the contracting, of adults for their own service. Here it does not appear but that the son was of age at the time of this agreement; and if he was, there is an end of the argument arising from the statute having disabled persons from binding themselves for a less period than seven years, because this person was not within the statute.-Judgment for the plaintiff. It must be observed, that every indenture of an infant, (except of such apprentices as are bound under stat. 5 Eliz. c. 4. § 25. or 26. antè, p. 137., but see note (a), ibid.) is voidable, at his election, on attaining his majority. Thus, in Ex-parte Mary Ann Davis, T. 34 G. 3., 5 T. R. 715. 1 Bott, 640. 723., a habeas corpus was moved for to bring up this person, that she might be discharged from certain indentures of apprenticeship entered into between herself and Edward Whitehouse, esq., whereby she bound herself to him as an apprentice for seven years, being therein described as aged 14 years, but in fact being upwards of 17 at the time of binding, and being now upwards of 21; the indentures still subsisting. This application was grounded upon the principle that infants cannot be bound beyond 21, but that they may dissent after they arrive at that age. Lord Kenyon C. J. It is clear that the apprentice must be discharged. Every indenture of an infant is voidable at his election; and in such cases the master must trust to the covenant of those who engage for the infant. But where the binding is under the authority of an act of parliament, that takes away the power of electing to vacate the indentures. I know of no act which prohibits the party in a case like the present to make such election upon her coming of age. This apprentice ought not to have been bound longer than till she was 21; and we ought now to discharge her. -The other judges concurred. An apprentice had at the age of 18 bound himself till 25. After he was 2 years of age, he had, at the suit of his master, been committed upon a conviction before two magistrates, on 20 G. 2. c. 19., for absenting himself from his service. The case of M. A. Davis was cited in support of a motion for a habeas corpus to bring up the apprentice. Upon the return to the writ, the conviction was set out, and upon the face of it there appeared no objection to have been made by the apprentice, when before the magistrates, on the ground of his right of election to continue after he came of age. The court remanded him, the conviction appearing regular; and said that the court of K. B. had no authority to direct the discharge of the apprentice from his indentures, and that in Rezv. Davis the report was mistaken in that respect. - Lawrence J. said, he did not know of a habeas corpus to discharge an apprentice from indentures. How can this court undertake to discharge men from their covenants upon a habeas corpus? Ex-parte Gill, 7 East, 376. 1 Bott, 685. Infant bound when under age, is entitled to be discharged at 21. But the court of K. B. cannot discharge the indentures, Election by apprentice on coming of age. Covenants of infants binding themselves. 5 Eliz. c. 4. Covenants of father, &c. It is suggested, that in Davis's case, she was in the care or custody of some person, and that the habeas corpus was to bring her up to be discharged. 3 Smith's Rep. 372. (As to the mode in which an infant may elect to vacate the indenture, on coming of age, see post, p. 155.) III. (4.) Df the Covenants of the Parties respectively. It seems clearly agreed, that, by the common law, infants or persons under the age of twenty-one years cannot bind themselves apprentices, in such manner as to entitle their masters to an action of covenant, or other action, for departing the service, or other breaches of the indentures; which makes it necessary, according to the usual practice, to get some of their friends to be bound for the faithful discharge of their offices, according to the terms agreed on. 4 Bac. Abr. 562. tit. Master and Servant. (a) By stat. 5 Eliz. c. 4. § 42, 43., because there hath been, and is some question and scruple moved whether any person, being within the age of twenty-one years, and bound to serve as an apprentice in any other place than the city of London, shall be bound, accepted, and taken as an apprentice, it is enacted, that every such person who shall be bound by indenture to serve as an apprentice, in any art, science, occupation, or labour, according to this statute, albeit he be within the age of twenty-one years, shall be bound as amply to every intent as if he were of full age at the time of making the indentures. But although an infant may voluntarily bind himself apprentice, and if he continue apprentice for seven years, he may have the benefit to use his trade; yet neither at the common law, nor by any words of the statute, a covenant or obligation of an infant for his apprenticeship shall bind him; but if he misbehave himself, the master may correct him in his service, or complain to a justice to have him punished according to the statute. But no remedy lieth against an infant upon such covenant. Gilbert v. Fletcher, Cro. Car. 179. 1 Bott, 624. But if his father, or other person, doth covenant for him, such covenant shall bind the father, or such other person; as in the case of Whitley v. Loftus. In the indenture of apprenticeship the father covenanted to pay the apprenticeship money; the son covenanted to account for his master's goods; and in the conclusion, the father and son each bound themselves for the true performance of all covenants and agreements therein. - By the court. The end of binding the father was to answer the wrong which might be done by the son to his master; therefore the father must be obliged for his son's true performanceof the articles; and the covenant that each did bind himself must be so, where the son is bound to perform the thing for which the covenant was made; and this clause is usually inserted, that the covenants may be taken distributively, to wit, that each of the covenanters should perform his part; and this makes the covenant of the son bind the father, who covenanted for him as well as for himself. 8 Mod. 190. 1 Bott, 629. (a) But if an infant of five years of age, or other person who is not potens in corpore, be retained, and serve in the best manner he can, his master must pay him his wages. Dall. c. 58. p. 141. Bro. tit. Labour, 46. 4 Bac. Abr. 562. So in Branch v. Ewington, Doug. 518. Action of covenant by the master against the father of the apprentice. The indenture was in the common form of the statute, and for the true performance of all and every the covenants, each of the said parties bound himself to the other. The breach assigned was, that the apprentice had absented himself from the service. Lord Mansfield C. J. said, nothing was clearer than that the father was bound for the performance of the covenants by the son. 1 Bott, 639. S. C.; and see 1 B. & Cr. 469, 470. Winston v. Linn, infrà. service; plea, that the son he then avoided Cuming v. Hill, M. 60 G. 3., 3 B. & A. 59. Action of covenant Covenant upon on an indenture of apprenticeship, in the common form, by the an indenture of master against the father of the apprentice. The breach assigned apprenticeship, was, that the apprentice had absented himself from the service. by the master against the faPlea, that the apprentice, at the time of making the indenture, ther; breach, was an infant, of the age of seventeen years; and that on the 20th that the apprenOctober, 1818, he attained his full age of twenty-one years, until tice absented which time he faithfully served the plaintiff, according to the himself from the meaning of the indenture; and after he had attained the age of twenty-one years, he, on the 21st October 1818, made void the faithfully served indenture, and quitted the service of the plaintiff, as it was lawful till he came of to do under the statute 5 Eliz. To this plea there was a general age, and that demurrer. In support of the demurrer, Branch v. Ewington, the indenture: 2 Doug. 518. suprà, was cited. - Abbott C. J. I am of opinion Held, that this that the father is liable to this action: he covenants that the was no answer son shall faithfully serve: the avoidance of the apprenticeship to the action. by the son during the term cannot discharge the father's covenant. The indenture of apprenticeship has existed in this form for more than a century, and has been in universal use. A construction has been put upon the instrument in a court of law, in the case cited from Douglas. I do not see any reason to doubt the propriety of that decision; and I think, therefore, upon principle as well as upon authority, that the defendant is answerable in this action. Bayley J. I may bind myself that A. B. shall do an act, although it is in his option whether he will do it or not. The father here binds himself that the son shall serve seven years. It is no answer in an action brought against the father, for the breach of that covenant, for him to say that it was in the option of the son whether he would serve or not. If the son does not choose to do that which the father covenanted he should do, the covenant is then broken, and the father is liable.-Holroyd and Best Js. concurred.-Judgment for the plaintiff. Cuff v. Brown and others, Exch. Sitt. after M. T. 58 G. 3., cor. Richards C. B., 5 Price, 297. Where a bill for 100l., payable at the end of three years, was given upon entering into an agreement for the articling of an apprentice for the term of five years at the end of three years, and the deed was executed immediately for a term of eight years, but before the end of the three years, the apprentice, of his own accord, and without any misconduct on the part of the master, ran away, and enlisted for a soldier. Upon his return, after some time, and offering to renew his services, the master was at first inclined to receive him, but on hearing of some other of his misconduct refused to do so; and upon the bill being put in suit by a bond fide holder, the court refused to grant an injunction. The premium was a consideration applying VOL. I. Ꮮ Apprentice running away and enlisting, the master, though refusing to receive him again, is not compellable to return any part of the fee. |