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provide for their apprentices under 43 Eliz., and the statute 8 & 9 W. III. c. 30. was made for the purpose." (1)
It seems to have been held in one case prior to 8&9 IW.III. c. 30. that as the statute has intrusted the churchwardens and overseers of the poor, by and with the approbation of two justices, to bind apprentices, the child must appear upon the face of the order to be put out by the assent of the churchwardens as well as the overseers; and the churchwardens not being mentioned in that order, it was quashed. (2) This determination proceeds on the ground that the churchwardens are to be considered as an integral part of the parish officers (3), and as having in this
(1) Per Lord Kenyon C. J., Rex v. Leighton, 4 Term Rep. 732. ante Vol. I. A similar act was passed relative to incorporated districts, See Rex v. Tunstead and Happing, 3 Term
20 Geo. III. c. 36.
Rep. 523. (2)
(2) Rex v. Fairfax, 3 Mod. 269.
(3) Per Lord Kenyon C. J., Rex v. Beeston, 3 Term Rep. 592. where the same great judge doubts the authority of that case. But the reports of it, Show. 76., Comb. 164., Carth. 94., state the order to be quashed on other grounds, and not upon this one. In Rex v. Beeston, supra, Lord Kenyon expressed himself thus, as to the power of the majority of parish officers to bind the whole. I do not mean to say, that the churchwardens and overseers are technically a corporation : but as far as concerns the regulations of the poor of the parish, they stand in pari ratione. And in the instance of corporations, the act of the majority binds the whole; so much so, that the court will compel the person who has the custody of the corporate seal, to affix it to any act, according to the vote of the majority, though against the consent of such person, as was done in the case of Wadham college, Cowp. 377. However, I do not go on the grounds of this similitude; but the foundation of my opinion is this, the 43 Eliz. c. 2. has directed that the general acts to be done by the churchwardens and overseers, shall be done by the majority of them, and I think that the spirit of that statute pervades all the subsequent acts respecting the government of the poor. Besides, in common understanding, what is required to be done by the churchwardens and overseers, is satisfied by being done by a majority. And, indeed, if we were to determine otherwise, the inconvenience would be so great as to make it necessary for the legislature to interfere and pass another law. The court, therefore, held, that the assent of the
money at the
particular instance a discretionary power, separate and independent from that of the overseers chosen by the parish.
When an apprentice is effectually bound, his master provide for ap- takes him for better or worse, and is to provide for him prentice. But justices cannot in sickness and in health. (1) But the justices cannot ororder wages or der him wages during the term of his apprenticeship, or end of appren- any thing to be given him after the term is ended. (2) ticeship. And if the master dies, neither his executors nor administrators are compellable, by a justice's order, to receive and provide for an apprentice, either as a pauper (3), or, if bound under 5 Eliz. c. 4. as an apprentice (4), because an apprenticeship is a personal trust between master and servant, and determined by the death of either; for instruction which is the end and design of the apprenticeship, cannot be obtained from the personal representative. (5) But covenant lies against the executor, in which there is no inconvenience, as the executor may make his defence by pleading no assets; or debts of a higher nature. (6)
majority of parish officers, was sufficient to bind the whole in a contract for maintaining the poor, under 9 Geo.I c. 7. post, chap. xxxiv. s.2. As to how a certificate is to be signed by them, see ante, 167. et seq. also ante, Vol. I. 61.
(1) Rex v. Hales Owen, 1 Str. 99. Nottingham, 3 Term Rep. 726. ante.
See also Rex v. St. Nicholas,
(2) Rex v. Wagstaff, Fol. 225. 1 Bott, 609. Pl. 846.
(4) Rex v. Peck, 1 Salk. 66.
(6) Per Eyre J., ibid. But now by 32 Geo. III. c. 57. s. 1. covenants for maintenance of parish apprentices, with whom no more than 5%. is given, are to continue in force no longer than three months after the master's death. By sect. 2. the surviving husband or wife, or a son, daughter, brother, sister, executor or executrix, administrator or administratrix, of the master or mistress, (having lived with, and become part of their family, at the time of the death,) may, within the three months, have such apprentice assigned to them by two justices. By sect. 3. the same provisions are extended to the case of that master's
The 8&9 W. III. c. 30. enacts, that if the master does not receive and provide for the apprentice, or refuses to execute the other part of the indentures, he shall forfeit for every such offence 10l. to be levied by distress and sale,
10%. penalty for not receiving an apprentice under 8&9 W.III. c.30.
for the use of the poor where such offence was committed. (1) But it seems further, that an indictment will lie Indictment for disobedience, either in case of not receiving, turning off, or not providing for such apprentices as the law requires to be received. (2)
But to render the indictment good, the binding must appear to be within 43 Eliz. c. 2. (3), and the sessions have no original jurisdiction to put out an apprentice, but only by way of appeal. (4)
Where binding within
45 Eliz. c. 2.
Of the Party's Redress against an Order to take an Ap
THE 8&9 W. III. c. 30. gives a power of appeal to the Appeal under next general quarter sessions, whose order shall be final 8&9 W.III and conclusive upon all parties. (5)
death, &c. to whom the apprentice is assigned. But by sect. 4. if the justices shall not in either case, think fit that the apprenticeship should be continued, it is thereby determined. For the remaining provisions of this statute, see the act itself in Vol. III.
(1) If the occupier of lands in A. resides in B., and upon application to him in B. refuse to receive an apprentice from A., quære, whether the poor of A. or of B. are to have the penalty?
(2) Reg. v. Gould, 1 Salk. 381. In Rex v. Trevilian, the court said they would not meddle with the general question, whether an indictment would lie for refusing to take an apprentice or not. 2 Str. 1268. But see Rex v. Gillifer, ante, 344. (5), and the cases cited, ib. and Rex v. Robinson, 2 Burr. 769.
(3) Rex v. Trevilian, 2 Str. 1268.
(4) Rex v. Fairfax, as reported, Comb. 164. 1 Show. 76.
(5) See Lord Kenyon's opinion, Rex v. Clapp, 3 Term Rep. 107.
Questions discussable on appeal.
Sessions may determine, that a mer
chant is unfit
to take apprentice.
Party when concluded from appeal.
Sessions state case. Order removable into K.B.
ing master to give two suits of clothes, &c.
As to the merits of the case; the child's fitness or unfitness to be bound (1), or of the party to receive an apprentice, are matters of fact upon which the justices are to decide according to discretion.
Two justices bound a poor girl apprentice to a merchant. The sessions discharged the order, because they thought it unfit to compel a merchant to take an apprentice. Their order was affirmed, because 8 & 9 W. III. c. 30. having given an appeal in this case to the sessions, it is in the discretion of the justices there to determine, whether it was or was not fitting to force an apprentice upon any one. (2)
But a party may debar himself from this right to appeal. Thus, if he execute the counterpart of the indenture, he is thereby concluded from appealing against it. (3)
If the sessions entertain a doubt, they may state a case for the opinion of the court of King's Bench (4); or, if any illegality appear on the face of the order, the party may remove it into that court to be quashed for the defect.
The overseers of a parish, with the assent of two justices bound a poor child to an attorney, who appealed to the sessions. The sessions ordered him to seal the counterpart of the indenture, which he refused, and removed it (5) by certiorari into the King's Bench. It was moved to quash the order; because, in the close of the indenture, it is said, that the master, at the end of the term shall give his apprentice two suits of clothes; one for holidays,
(1) Rex v. Saltern, Cald. 444. ante, 340. (2).
(2) Minchamp's case, 2 Salk. 491. See also Rex v. Saltern, supra, (1). (3) Rex v. Saltern, supra, (1).
(5) i. e. the order.
and the other for working days, which, upon debate, the court held to be ill, and quashed the order. For the justice cannot order him wages during the term of his apprenticeship, they must only order him maintenance as an apprentice, and cannot order him any thing after the term is ended. (1)
(1) Rex v. Wagstaff, Fol. 225. See some exceptions, where parish apprentices are discharged by a justice's order, 32 Geo. III. c. 57. s. 11. Vol. III.