before we proceed to consider the effects and consequence of contracts of apprenticeships generally. stamp duties. Thus, apprentices bound out under the provisions of any Poor apprentices public charity are exempt, by the statutes regulating exempt from them, from the duties payable on the consideration money; nor need trustees of public charities be parties to indentures for putting out poor children apprentices with the funds of the charity. (v) And parish apprentices, being bound out under the provisions of a particular statute for that purpose, the contract must be conformable with the particular directions of the statute itself, (w) and subsequent ones passed to amend it, which are 1. That the binding must be by the majority of the churchwardens and overseers of the parish to which the pauper belongs. (x) But it has been holden, that an indenture, binding out a poor apprentice, executed by W. S. churchwarden, and J. G. overseer of the poor, of a hamlet maintaining its own poor separately from the parish at large, not being impeached by evidence negativing its execution by a majority of the churchwardens and overseers of the hamlet, shall be deemed good, by intending that there were two overseers for the hamlet, as required by statute, and only one churchwarden, by custom, in the same place, and therefore that the binding was regular. (y) Also that an indenture of apprenticeship, executed by the overseers of a township which has no church or chapel warden, and maintains its own poor separately, is a valid indenture, though neither of the churchwardens of the parish at large, within which the township is situate, join in the execution. (z) And an indenture by one churchwarden and one overseer was holden good within the statute, in a case where, by custom, there was but one churchwarden. (a) And where a parish has united with others for the support of the poor, according to the provisions of 22 Geo. 3. c. 83. and a guardian has been appointed, an indenture executed by the churchwardens and overseers is still good, and the guardian need not execute. (b) 2. That the apprentices must be the children of parents (v) The King v. Quainton, 2 M. and S. 460. (w) 43 Eliz. c. 2. (x) For the explanation of the words "majority of the churchwardens and overseers," see 51 Geo. 3. c. 80. and also 54 Geo. 3. c. 107. (y) The King v. Hinckley, 12 East, R. 361. (z) The King v. Nantwich, 16 East, R. 228. The King v. Shelton, 1 B. and A. 175. The King v. Lutherworth, 3 B. and C. 487. Residence need not lie in the master's parish. Must be in the service of the master. Residence on account of illness or indulgence confers no settlement. whom the churchwardens and overseers shall judge not able to maintain them. 3. That boys shall be bound till twenty-one, and girls till twenty-one, or marriage. 4. That two justices, having jurisdiction, must be assenting parties to the indenture, and being a judicial act, must be together at the time of assenting; (c) though it is not absolutely necessary that they should sign together. (d) 5. That such apprentices may, by the assent of two such justices as aforesaid, be assigned; and such assigned apprentices shall be subject to all such regulations as if they had continued to serve under the original indenture.(e) It has been holden in the recent case of The King v. Great Sheppey, 8 B. and C. 74. that if there be collusion between the relatives of an infant pauper to bind him to one of them, who does not carry on the trade he professes to teach, the indenture will not be vitiated by the fraud, if the parish officers are not parties to the fraud, and a settlement will be gained by service under such binding. 2. Of the residence under the contract and its effects.The settlement of an apprentice does not necessarily depend on the settlement of the master or mistress, but on his own residence, during his apprenticeship, in the actual service of such master or mistress. Thus, where an apprentice works in the day-time with his master in the parish of A. but sleeps in the contiguous parish of B. where his home is, B. is the place wherein he obtains his settlement under the indenture; (f) because the place where a person lodges is generally understood to be the place of his residence.(g) But the residence must be in the service of the master; for the words of the statute creating this species of settlement (h) "binding and habitation" must be understood of an habitation referable in some way to the apprenticeship.(i) Thus where an apprentice had a general indulgence to be absent from the place of his service from Saturday evening till Monday morning, leaving as usual on Saturday night, and never returning to serve under his indentures, gains his settlement where he slept on the Friday night previous to quitting, for there being no account left standing between him and his master when the apprentice left his (c) The King v. Hamstall Ridwane, 3 T. R. 380. 32 Geo. 3. c. 57. The King v. Stratford-upon-Avon, 11 East, R. 176. (h) 3 W. and M. c. 11. The King v. Barnsley, 7 East, R. 381. service on the Saturday, there was nothing from which any recognition of the indenture subsequent to that point of time could be inferred. (j) Therefore it has been decided, that, if an apprentice, on account of illness, go into another parish than that in which his master lives, merely as a temporary residence to get cured, without performing any sort of service for his master during such residence, a settlement is not gained there by such temporary residence in such other parish. (k) And a mere residence by indulgence is not sufficient to confer a settlement in a parish where no service is performed. (1) And in a case where a master mariner, having no immediate occasion for his apprentice's service, the vessel being then in dock, offered either to turn him over to another master for a time, or to let him go back to school; and the apprentice chose the latter, and accordingly did go, and resided above forty days with his schoolmaster, it was decided by the Court of King's Bench that this was a suspension of the apprenticeship for the time, that the service did not continue while the apprentice was at school, and that therefore no settlement was gained by his forty days' residence at the parish in which the school was situate. (m) sary. Forty days is, in all cases, the residence necessary for Residence for gaining a settlement, which is by inference, from the forty days necesstatute, making settlements depend on residence; for it enacts, "that churchwardens and overseers may obtain the removal of any person coming to inhabit, and not renting to the amount of ten pounds per annum, upon complaint to the justices within forty days after such person shall have so come to settle;" (n) the necessary inference from which is, that after a residence of forty days, such removal shall not take place, or, in other words, a settlement will have been gained; and by a subsequent statute, (o) apprentices, bound by indenture, are excepted out of the former provision for removal. contracts. It has been already shewn, that residence under a contract for an apprenticeship will not confer a settlement, if the contract itself was originally defective. And the con- Construction of struction put by the Court of King's Bench on these contracts is this, viz. that one party contracting to teach, and the other to learn, a trade, shall be construed an apprenticeship; and that nothing but the clearest intention in the parties to make the service contracted for one of a differ j) The King v. Ribchester, 2 M. and S. 482. (0) 3 W. and M. c. 11. Two contracts, one good for service, and the other bad for the effect. ent description, shall controul the construction, or take it out of the general rule. However, it has been decided, that if there be a valid contract for a hiring and service, which is afterwards attempted to be converted into an apprenticeship, but the apprenticeship: contract for such conversion turn out to have been deficient, it shall not cancel, or do away, the former valid contract: but if the term of service, originally contracted for, has been performed, a settlement shall be acquired under such contract for hiring: (p) and the converse of the proposition is equally true, viz. that if there be a valid contract for an apprenticeship which is afterwards attempted to be turned into a hiring and service, that the latter should be with the consent of the master party to the indenture; for if he do nothing either to put a legal conclusion to the apprenticeship, or regularly assign the apprentice, the former contract is not invalidated by the the latter. As where the master of several apprentices, on quitting business, proposed to assign all his apprentices to J. S. but an assignment was not made. pauper, one of the said apprentices, was afterwards hired by J. S. as a servant for fifty-one weeks, and her former master on meeting her, expressed his approbation of her having gone into the service of J. S. The session found that there was no particular assent of the original master to the second service, and therefore it could not operate as an assignment of the apprentice, and that the contract with J. S. could not operate as a hiring and service, because the indentures were not put an end to, so as to admit of the pauper legally entering into service. (q) The An indenture of apprenticeship may be assigned from master to master, through any number successively; and if the original contract was valid, and the assignments were regularly made by each master in succession, the residences under them for the purposes of settlement will be governed by the same rules, as if the apprentice had continued in his first of place abode under the indenture. But though the assignment may be by parol, it must be express, and for a particular service, not a general leave or license to serve any one, at the discretion of the apprentice: for such permission and service will not amount to an assignment, and therefore cannot enable the party to obtain a settlement. (r) An assignment by the executor of a master will have the same effect as by the master himself. (s) By 32 Geo. 3. (p) The King v. Shinfield, 14 East. R. 541. The King v. Holy Trinity, 3 T. R. 605; the King v. Sheb- c. 57. provision having been made for the assignment of parish apprentices, on the decease of their masters or mistresses, to the widows, or husbands, son or daughter, brothers or sisters, executors or administrators, respectively of such deceased masters and mistresses; it was determined, that an apprentice, though living with the son of a person to whom he was originally bound, by that person's individual consent at the time of his decease, if not so living with him as apprentice, regularly assigned according to the specific provisions of the statute, or as the words are, by virtue of it, cannot gain a settlement in another parish, by serving another person, with the mere consent of the son and assignee of such first master or mistress, unless continued in the precise manner directed therein; Lord Ellenborough, C. J. observing that the words "subsequent master or mistress mean such as become so by the provisions of the statute. (t) It has been observed, the assignment may be parol; but if Assignment by it be by deed, the deed must be governed by the same rules deed. of evidence, when offered in proof, as the original indenture; that is to say, it must be stamped, and having been reduced to writing, must be produced, and cannot be proved by parol testimony. (u) But after a great lapse of time, a legal assignment by indorsement may be presumed; as where J. G. was bound apprentice in 1764, in the township of C.; and in 1767, on the death of his master, was assigned by his widow by indorsement on the indenture. Under this indorsement, which was before a stamp was necessary, J. G. the apprentice, served his time in the township of K. which township had relieved the family of J. G. residing in another parish. After such a lapse of time, (more than forty years) the Court of King's Bench thought the session might presume every thing necessary to the validity of the proceedings; as that the widow was executrix, and had a right to assign; and held that pauper's settlement was in K. (v) master. 3. Of the effect of a premature termination of the rela- Bankruptcy of tionship created by the indenture.-Until the last bankrupt act, the bankruptcy of the master was no discharge of the indentures; (w) but now, by that act, it operates as a discharge. (x) Agreement to An agreement to cancel the indenture, on a sum of cancel and enter money to be paid by the apprentice at a future time, and in the King's (t) The King v. Sheepshead, 15 East, 59. (u) The King v. St. Paul Bedford, 6 T. R. 452. (v) The King v. Barnsley, 1 M. and S. 377. (w) Buckington v. Shepton, 8 Mod. 235; 2 Ld. Raym. 1352. (x) 6 Geo. 4. c. 16. s. 49. service. |