390 Any person bound as apprentice to a master who cannot take one, An apprentice who binds himself, during in fancy, thereby gains a settle ment. S. C.And.373. The indentures must be legally stamped to en title the appren tice to settle- S. C. 2 Bar. The binding need not be by indenture for the purpose of CHAPTER VII. SETTLEMENT BY APPRENTICESHIP. 1. The Statutes. II. Of the Binding necessary to gain a Settlement. IV. Of discharging the Indentures. V. Of binding to one Master and Service with another. I. Statutes. 3 W. & M. c. 11. § 8. — 31 G. 2. c. 11. II. Of the Binding necessary to gain a Settlement. 489. ANONYMOUS, T. T. 9 Ann. MSS.-If an apprentice be bound to a master who has no right to take an apprentice, yet a settlement will be gained under such an indenture, by service. (a) shall thereby gain a settlement. S. C. Vin. Ab.29. 490. Newberry v. St. Mary's, H. T. 3 G. 2. Foley, 154. — A poor boy of 14 years of age bound himself apprentice for seven years to a weaver. - Mr. TYRRELL argued, that as this was not a binding according to the statute, the indenture was void, because an infant could not bind himself; and, therefore, the - But PER TOTAM pauper could not gain a settlement under it CURIAM, It did not gain him a settlement; for an infant may make an indenture for his own benefit. 491. Salford v. Storeford, M. T. 5 G. 2. MSS. L., while he was under the age of 21, was bound by indenture an apprentice to G., in the parish of S.; the indentures were never stamped, but the apprentice served his time out under them in the parish of S. The Sessions conceived this to be a good settlement by way of service.. But THE COUrt of King's Bench, on the authority of the case of Cuerden v. Leyland (b), quashed the order, for that servitude under indentures of apprenticeship which are not stamped can never gain a settlement. - 492. Rex v. Mellingham, T. T. 5 & 6 G. 2. 1 Sess. Cas. 417. One B. was bound an apprentice by a deed in the form and manner of an indenture, but it was not actually indented. The gaining a settle- justices at Sessions, on the foot of that binding, adjudged it to gain a settlement. The order of Sessions was afterwards quashed by THE COURT OF KING'S BENCH, because a binding without indenture was not good. (c) But now, by 31 G. 2. c. 11., no setPe ment. (a) See the case of Rex v. St. (c) See the same point adjudged in the cases of Rex v. Stratton, Burt. S. C. 272. and Rex v. Mawnan, Burr. tlement shall be avoided by reason of the deed not being indented only. 66 voidable, and not 493. St. Nicholas, v. St. Peter's, M. T. 10 G. 2. Burr. S. C.91. A binding for — B., being under 16 years of age and unmarried, was bound less than seven apprentice to J. B. of St. P., in I., by indenture, and with the years is only consent of his father, for the term of four years only; and he void. dwelt with and served his master in St. P. only the four years. The Sessions were of opinion, that the pauper did not gain a settlement in St. P., because he was not bound for seven years according to the 5 Eliz. c. 4.- LORD HARDWICKE C. J. The question is, "Whether an apprentice bound for less than seven years can gain a settlement?" I am of opinion, that he may gain a settlement under such a binding. The words of 5 Eliz. c. 4. § 26. are very strong, "That every person, &c. shall and may have and retain the son of any freeman, &c. to serve " and be bound as an apprentice after the custom of the city of "London, for seven years at the least." Between this 26th section and the 41st, there are a great many regulations concerning the persons who are to take an apprentice, and who are to be bound apprentices. Then comes section 41st, which says, "That all "indentures of apprentice, otherwise made or taken than is by this "statute limited, ordained, and appointed, shall be clearly void in "the law to all intents and purposes." The question, therefore, turns upon this 41st section taken together with the 26th. And it is to be inquired-1st, Whether the 41st section has a relation to, and runs over all, the several clauses of the act, so as to reach the 26th section. 2dly, If it do, then whether it makes such an indenture void, or whether it makes it voidable only. First, I do not see but that it does run over the several clauses of the act, so as to reach the 26th clause. Secondly, I am of opinion that it does not make this indenture void; but only voidable, if the parties themselves think fit to take advantage of it. There are many cases where, though according to the strict words a thing is made void, yet such thing is held not to be absolutely void, but only voidable. One instance of this is the statute of Westm. 2. c. 1. relating to fines levied by tenant in tail. The act says, that the fine shall be "ipso jure nullus," as strong an expression as can be thought of: and yet it has been held that it shall not be absolutely void against the issue in tail; but only work a discontinuance, and put him to his formedon, if he think fit to take advantage of it. In Hob. 166. in the case of Winchcomb v. Bishop of Winchester, several cases of this kind are collected; one of which is very material, viz. That a sheriff's bond against the statute of 23 Hen. 6. is made utterly void; and yet "Non est factum" cannot be pleaded to it. That is the case of a bond; this, of an indenture. Here is an indenture between the master and his apprentice to serve for four years; and the apprentice has actually served four years: it has had its effect between the parties; neither of them has thought fit to take advantage of any defect in it. The parish has had the benefit of this apprentice's service, as far as the service of an apprentice is a benefit to a parish, and yet the parishioners would make it void: this would, I think, be extremely hard. I will mention a case which was not mentioned at the bar; it is in 1 Salk. 98. Barber v. Dennis (a); but Ante, vol. i. is more fully stated in 6 Mod. 69. The widow of a waterman, pl. 626. who, as was said, by the usage of Waterman's Hall, may take an apprentice, had her apprentice taken from her, and put on board a Queen's ship, where he earned two tickets, which came to the defendant's hands, and for which the mistress brought trover. It was agreed the action would well lie if the apprentice were a legal apprentice; for his possession would be that of his master, and whatever he earned shall go to his master. But it was objected, that this supposed apprentice was no legal apprentice if the indentures be not enrolled pursuant to the act of 5 Eliz.; and if he were not a legal apprentice, the plaintiff bad no title. But LORD CHIEF JUSTICE HOLT said, he would understand him an apprentice, or servant de facto, and that would suffice against them being wrong-doers. In the report in Salkeld, the word "servant" is not mentioned. And, indeed, an action could not have been brought for a servant's wages, either on board or elsewhere: for a master cannot bring an action for the wages of his servant; though for the wages of an apprentice he may, because the time of an apprentice is considered as the time of the master; and what is earned by the apprentice is considered as belonging to the master. Now, if the construction of this act had been so very strict as is contended for, such a construction would have avoided the apprenticeship to the effect then in question; and the mistress could never have maintained that action. Therefore, I am of opinion, that this indenture is not void, so as to be liable to be taken advantage of by a third person; but voidable only, at the election of the parties, if they think fit to take advantage of it. And it would be extremely hard that all these indentures should be absolutely void for want of any single qualification required by this act. If the time of service was the only circumstance, liable to this objection, I should not think it of so much consequence; for, I believe, there are not many bindings for a less term than seven years; but there are a vast many other qualifications that are mentioned in the 5 Eliz., which are all liable to the same objection; and if a binding for seven years be necessary, it follows, that if any one of these qualifications are wanting, the indenture will be in the very same case as if this circumstance of time was wanting; and if so, I question whether any one settlement under an indenture of apprenticeship has been gained for 50 years past. Therefore, upon this argument, I am of opinion that the settlement is good, though the binding was only for four years. But then there comes the statute of 3 & 4 WV. & M. c. 11. §8. which enacts, "That if any person shall be bound an "apprentice by indenture, and inhabit in any town or parish, "such binding and inhabitation shall be adjudged a good settle"ment, though notice in writing be delivered and published:" from whence it is inferred, that if there be no binding by 5 Eliz. then there is no settlement by 3 & 4 W. & M. But this act of King William and Queen Mary takes it up as he finds it; and only intends that an apprentice should not be obliged to give notice in writing. The construction of both statutes must be the same. And though the notion of settlements of poor persons had not obtained at the time when the act of 5 Eliz. was made, as it has done since, yet it was a mistake of one of the counsel to say, that the 33 Eliz. was the first act relating to the settlement of poor persons; for 27 Hen. 8. c. 25., which is printed in Rastal's edition of the Statutes at Large, establishes a settlement for such as had been born or dwelt three years in any parish: there was a subsequent statute 1 Edw. 6. c. 3. But, indeed, the present notions of settlements have taken their rise from 13 & 14 Car. 2. e. 12. The principal objection to this binding for four years only was founded upon the case of Cuerden v. Leland (a), where the (a) See vol. i. indenture was holden to be absolutely void for want of being pl. 643. stamped: and how to distinguish that case from this is the difficulty. If there had been no other words in the 8 Ann. c. 9. than there are in this, the difficulty had been great enough. But that case materially differs from the present; for, in that case, there were not only the words "that all indentures, whereupon the duty was "unpaid, and all unstamped indentures, should be void;" but the act of parliament went on further, and added these words," and "not available in any court or place, or to any purpose what"soever." And there is a subsequent clause which further enacts, "that no indenture required by that act to be stamped, "shall be given or admitted in evidence in any suit to be brought by any of the parties thereunto, unless such party on whose "behalf it shall be given or admitted in evidence do first make "oath that the whole sum really given with the apprentice, or "contracted for, was truly inserted." So that in that case it was superadded; 1st, that such indenture should not be available in any court or place; 2dly, that it should not be given or admitted in evidence, and yet the order made in that case was grounded upon the indenture which was not stamped, nor was the duty paid. Therefore the justices admitted a matter in evidence which they ought not to have done. And it has been holden, that if the justices admit evidence which they ought not to admit, it is a sufficient reason for quashing their orders. And, therefore, that case of Cuerden v. Leyland was properly determined; because the justices should not have admitted the evidence upon which they grounded their order. Therefore, I am of opinion, that the present indenture is not absolutely void, but only voidable at most. THE OTHER THREE JUDGES concurred in opinion, that this indenture was not absolutely void, but only voidable; and that at the election of the parties only, and not by a third person; for, that this indenture could only be avoided by the master or servant, who were the parties to it, but not by the parish, who have had the benefit of the service of this apprentice. They added some instances to prove that where the strict words of statutes seem to make things nullities, yet they must be regularly avoided before they shall be absolutely considered as such; particularly where a previous sentence of excommunication is requisite; though a statute says, "that the person shall be ipso facto excommunicate." And they thought it would be inconvenient to admit too rigid a construction of the 41st clause of the 5 Eliz. c. 4. which seemed to them to be a law more beneficial to corporations than to the public in general, and which had not been much regarded or favoured. (a) (a) See also Rex v. St. Petrox, that the indenture of a parish apprentice bound "until she shall have accom**plished her full age of 21 years," is not void for having omitted the alter- 394 A binding aud service will gain a settlement, although the apprentice fee be not inserted in the indentures; for that only subjects the master to a for feiture, but doth not vacate the indentures. S. C.2 Sess. 196. 2 Str. 1132. Burr. S.C.145. Settlement may be gained where the apprentice is bound, though the indenture be not executed by the master. A binding, though defec tive in omitting part of the form required by 43 Eliz. c.2.5. and voidable be- ing a settlement. St. Peter's, ante, pl. 493. An apprenticeship must be by deed or writing; for a parol binding or a verbal agreement to be an apprentice, is not a sufficient 494. Rex v. Northowram, E. T. 13 G. 2. MSS. -The mother of the pauper proposed to put him an apprentice to A. S. in N. 495. Rex v. St. Peter's-on-the-Hill, H. T. 14 G. 2. MSS. his master. -- - The 496. Rex v. St. Petrox, T. T. 19 G. 2. Burr. S. C. 248. pauper, a poor girl, was bound an apprentice by the parish of St. Petrox to R. G., with her to serve, dwell and abide, until she should have accomplished her full age of 21 years. The statute of 43 Eliz. c. 2. s. 5. enacts, "That it shall be lawful to bind any such children apprentices till such woman child shall come to "the age of 21 years, or the time of her marriage." THE COURT thought it not void for want of the alternative of marriage; though perhaps not obligatory on the parties. In the Ipswich case (b), the indenture was holden not to be binding betwixt the parties, yet it was holden neither to be void nor voidable by the parish as to the gaining a settlement. But even if there was no authority in the case, yet the indentures ought not to be considered as absolutely void, but only voidable; for it would be extremely hard that a poor child who had served many years under an indenture of apprenticeship should lose the benefit of her settlement, because the justice's clerk who made the indenture happened to be either ignorant or negligent. 497. Rex v. Whitechurch Canonicorum, T. T. 5 G. 3. Burr. S. C. 540,- J. G., when he was 22 years of age, agreed with B., a stone-mason, who lived in W. F., that he B. should take G. apprentice for the term of six years, and teach him him his trade of a stone-mason; that lie should, during the term of his apprenticeship, provide for him meat, drink, washing, lodging, and clothing; that G. should live with and work for him as his ap (a) See the case of Rex v. Fleet, post, pl. 500. that an apprentice legally bound shall not be prevented from gaining a settlement on account of the master's not having signed the counterpart pursuant to the direction of the 8 & 9 W. 3. c. 30. and the case of Rex v. St. Nicholas in Nottingham, post, pl. 502., that a parish apprentice shall gain a settlement, although he did not execute the indenture by which he was bound. |