Regulations by statute for discharging apprentices. an abandonment of the master by the apprentice, in consequence of such agreement, does not avoid it; (y) nor even a voluntary entering into the King's service, the master not prohibiting it, but not giving up the indenture. (z) But where the apprentice and his master were the only contracting parties to the indenture, the apprentice being under age; the master after a year's service ran away, and agreed that the indenture should be given up, which was done this being so manifestly for the interest of the apprentice, his acceptance of the indentures was decided to be sufficient dissolution of the contract, and he was at liberty to go into another service, and was capable of obtaining a settlement by so serving. (a) Apprentices, with whom less than five pounds has been given, may be discharged by two justices from any master who is so far reduced in circumstances as to be unable to keep or employ such apprentice. (b) An indenture of a parish apprentice may be put an end to by consent of all parties; that is to say, the master, the apprentice, and the parish officers, consenting; but not otherwise while the apprentice is a minor. Also by the master and the apprentice only, the latter being of full age, but not otherwise; for though an apprentice under age may bind himself, being a contract necessarily for his advantage, and a case excepted out of the general rule of law respecting infants, the consent of an infant alone to his discharge, is "no consent at all." (c) And, therefore, where an infant apprentice, who had bound himself for seven years, and served three of them, acquiesced in his master's proposal to buy the remainder of his time for sixpence, paid the sixpence, and then bound himself to another master, it was held that the first contract was not dissolved, and that the second was, consequently, invalid. (d) The master assigning, and the apprentice consenting, without the approbation of two justices, will not make an apprenticeship within the statute of Elizabeth, according to Dalton. (e) We learn by a decision just cited, that the assent of the apprentice adds no authority to the assignment; and it appears from the general current of recent authorities, that these apprenticeships being compulsory, it is the assent of the overseers that gives the validity to all acts on the part of infant parish apprentices; but since (y) The King v. Chipping Warden, 8 T. R. 108. (z) 2 Bott. 402. by the statute of 32 Geo. 3. masters, by the consent of two justices, may assign these apprentices, and their executors, &c. may assign within three months, upon similar conditions, which power is usually exercised, the premature conclusion of the contract by death is rarely the source of any litigation. By 56 Geo. 3. c. 139. no master can either assign or place out a parish apprentice without the consent of two justices; and it appears from the recent case of the King v. Shipton, 8 B. and C. 88. that by serving another with the master's approbation, but without such consent, no settlement is acquired. settlements. All these cases, indeed, would be of no importance to the How these reguparticular subject matter of this section, except that the lations apply to question "whether an indenture continues in force, or is cancelled," and therefore the inferential question, "whether an apprentice serving in another place, than that to which he was originally bound, is to be considered as discharged from his indenture and sui juris; or whether he be serving under the indenture, and in the implied service of his original master," is often of essential importance for the determination of appeals respecting the settlements of such apprentices in the actual employ of other than their original masters. 4. Of the evidence of the binding.-After what has been premised under the consideration of evidence, and especially that portion which treats of copies of deeds, and of the application of parol testimony to prove the existence of written documents, it will be sufficient here to apply those principles to one or two instances. denture. The sessions may receive parol evidence of an appren- Evidence of inticeship, if the indentures be destroyed, or cannot be found, or produced. And if the opposite party produce an indenture, on notice given to them for that purpose, it may be read without any proof of the execution: this was formerly vexata questio, but it has been of late fully established. In civil actions, where a plaintiff wishes to give in evidence a deed in the defendant's custody, he gives the defendant notice to produce it: and the deed, when produced, must primâ facie be taken to be duly executed, because the plaintiff, not knowing who are the subscribing witnesses, cannot come prepared at the trial to prove the execution. An instrument, therefore, coming out of the hands of the opposite party, and purporting to be regularly executed, must primâ facie be taken as proved. (ƒ) (f) The King v. Middlesex, 2 T. R. 41; and see the King v. Stourbridge, 8 B. and C. 96. How it originated. the words " married per sons." un § 5. OF SETTLEMENT BY HIRING AND SERVICE. The settlement by hiring and service, which has given rise to more litigation than any other, is founded on 3 W. and M. c. 11. and 9 and 10 W. 3. c. 30. The first of these statutes enacts, that if any unmarried person, not having child or children, shall be lawfully hired into any parish or town for one year, such service shall be adjudged a good settlement therein; though no notice in writing be given to the parish officers. In consequence of the ambiguity attendant on the words "such service," in this clause, the 9 and 10 W. 3. c. 30. s. 4. provides that no person so hired shall be judged or deemed to have a good settlement in any such parish or town, "unless such person shall continue and abide in the same service for the space of one whole year." The intention of the legislature, in this last act, probably was that the year's service should be performed under the yearly contract; but, as we shall see, the words used have been thought not to warrant this construction. By 9 and 10 W.3. c. 11. an exception is made as to servants residing under certificates; which, by 12 Ann. st. 1. c. 18. and 33 Geo. 3. c. 54. is extended to all persons hired by and serving with certificated masters. In considering this branch of settlement, we are to inquire 1. What parties may gain a settlement by hiring and service. 2. What contract of hiring is necessary to a settlement. 3. What service is necessary to a settlement. 4. Necessity and effect of residence in case of hiring and service. 1. What parties may gain a settlement by hiring and Construction of service.-In the construction of the term " unmarried persons," it has been decided in many cases, that a widower, although he have children living, may gain a settlement by hiring and service, provided those children are emancipated, and have gained settlements in their own right.(g) And if a married man agree conditionally to become the servant of another, and before a definitive agreement take place, the wife die without issue, he will gain a settlement by a hiring and service for a year. (h) So a marriage after the hiring, and during the service, or even before its commencement, will not prevent the servant from gaining a settlement; for marriage does not hinder the service, and the contract continues; there (g) 2 Bott. 177. (h) Burr. S. C. 455. fore if the man perform his service, he gains a settlement. (i) It may be generally laid down, that if the words of the statute be but complied with, respecting the contract, and the service under it, according to the interpretations put upon them by the courts, the relation in which the contracting parties stand to each other, is of no importance. (j) Thus a child may gain a settlement by a hiring by, and a service with, a father or mother, who has not one. (k) It is not necessary that the master should reside or be settled in the parish where the servant performs his service, or where he sleeps. And a settlement may be acquired by service under a yearly or general hiring in a public establishment, like the military college at Sandhurst, though the establishment is free of rates and taxes.(1) 2. What hiring is necessary to a settlement.-The next The hiring. question which has been agitated, has been "what shall be construed a hiring for a year?" When a contract is made for a year in express words, it admits of no doubt; but constructive hirings were admitted, and then the latitude given to interpretation was almost unbounded. Thus, it has been, decided that any contract which purports to be a general hiring, without any limitation of time being mentioned, shall be interpreted a hiring for a year. General hiring. And moreover, that if there be only actual service Hiring raised by proved, where the nature of the service is such as neces- implication. sarily implies a hiring, the courts of law will raise such implication. (m) The very words of the Court of King's Bench in modern cases will be sufficient on this part of the subject. "The general rule is, that an indefinite hiring without Indefinite any circumstance to shew that a less time was meant, shall be hiring, considered as a hiring for a year." (n) "All that is necessary to give a settlement under the statutes is, that there should be a hiring for a year, and a service for a year. There must, therefore, either be an express, or an implied, contract for a year, in order to give the servant a settlement. And an express hiring for eleven months will not confer a settlement, unless the sessions find that it was fraudulent, and that a year's (i) The King v. Allendale, 3 T. R. 382; the King v. Stannington, 3 T. R. 385. 8 The King v. Chertsey, 2 T. R. 37; 2 Bott. 304. Id. ibid.; Chesham v. Misenden, 2 Bott. 178; the King v. Chellesford, 4 B. and C. 94. (1) The King v. Sandhurst, 7 B. and C. 457. (m) The King v. Long Whatton, 5 T. R. 447. (n) Cald. 440. Hiring to work by the piece. By the week Hiring indefi nite wages reserved weekly. Special hiring. service was intended, though only eleven months were expressed."(o) But the party hiring himself must be in a situation to be able to make such a contract; and his ability so to do has not unfrequently been the subject of litigation. Thus, where a soldier in the King's service, liable at all times to be called upon active duty, hired himself for a year, it was made a question in the King's Bench whether he was in a situation to make such a contract? and the judges were divided upon it: but the following remark of Bayley, J. is well worth attention. "I do not find it in the act of parliament," said he, " that there must necessarily be an indefeasible, but only a lawful, hiring;" and what gives great countenance to the inference to be drawn from this observation of the learned judge, is, that in a case shortly after in the same court it was decided, that a person precisely circumstanced as the pauper in the above case, may contract for the renting of a tenement, and should be construed, conformably with the statute 13 and 14 Car. 2. to take it cum animo morandi et manendi. (p) But if it appear that the servant was hired to work by the piece, this shall not be considered as a general hiring for a year. (q) So, if it appear that the servant was hired as a weekly labourer, it shall not be considered as a general hiring for a year. (r) Where nothing is said, in a contract of hiring, about the time, but a reservation of weekly wages, it is a weekly hiring only. (s) And a hiring at 6s. a week for the winter, and 9s. a week for the summer, nothing being said about the duration of the service, is not a yearly hiring.(t) But although the hiring be at so much per week, yet if the hiring was intended to be for a year, or if it appear from circumstances to have been general, the reservation of weekly wages will not control that hiring. (u) After the subject of general hirings had been nearly disposed of, then special hirings, and conditional hirings, and customary hirings, became subjects of controversy. On these points a few determinations will be sufficient. A hiring of a party for a year, who is to be paid accord Per Lord Kenyon, C. J. the King v. Macclesfield, 3 T. R. 77. p) The King v. Beaulieu, 3 M. and S. 229. (9) The King v. Woodhurst, 1 B. and A. 325. The King v. Newton Toney, 2 T. R. 453. The King v. Pucklechurch, 5 East, R. 382. (t) The King v. the Inhabitants of Warminster, 6 B. and C. 77. (u) The King v. Birdbroke, 4 T. R 245. |