tice, upon whose binding out no larger a sum than Five pounds of lawful British money was paid, touching or concerning any misusage, refusal of necessary provision, cruelty, or other ill-treatment of or towards such apprentice, by his or her master or mistress, to summon such master or mistress to appear before such justices, at a reasonable time to be named in such summons; and such justices shall and may examine into the matter of such complaint, and upon proof thereof made upon oath to their satisfaction (whether the master or mistress be present or not, if the service of the summons be also upon oath proved), the said justices may discharge such apprentice, by warrant or certificate under their hands and seals, for which warrant or certificate no fees shall be paid; and it is also enacted, that it shall and may be lawful to and for such justices, upon application or complaint made upon oath, by any master or mistress against any such apprentice, touching or concerning any misdemeanour, miscarriage, or ill-behaviour in such his or her service (which oath such justices are hereby empowered to administer), to hear, examine, and determine the same, and to punish the offender by commitment to the house of correction, there to remain and be corrected,1 and held to hard labour for a reasonable time, not exceeding one calendar month, or otherwise by discharging such apprentice in manner and form before mentioned: And whereas by another act made in the thirty-third year of the reign of his late Majesty King George the Third, intituled "An Act to authorize Justices of the Peace to impose fines upon constables, overseers, and other peace and parish officers, for neglect of duty, and on masters of apprentices for ill-usage of such their apprentices, and also to make provision for the execution of warrants of distress granted by magistrates" (33 Geo. III. c. 55), it is enacted, that it shall and may be lawful for any two or more of his Majesty's justices of the peace, assembled at any special or petty sessions of the peace, upon complaint made to them upon oath, by or on behalf of any apprentice to any trade or business whatsoever, whether bound apprentice by any parish or township, or otherwise (provided that not more than the sum of Ten pounds be paid upon the binding of such apprentice), against his or her master or mistress, of any ill-usage of such apprentice by such master or mistress (such master or mistress having been duly summoned to appear and answer such charge or complaint), to impose, upon conviction, any reasonable fine or fines not exceeding the sum of Forty shillings upon such master or mistress respectively, as a punishment for such ill-usage; and by warrant under the hands and seals of any two or more of such justices assembled at any such special or petty sessions as aforesaid, to direct such fine or fines, if not paid, to be levied by distress and sale of the goods and chattels of the person or persons so offending, rendering the overplus (if any) after deducting the amount of such fine or fines, and the charges of such distress and sale, to such offender or offenders: And whereas it is expedient that the provisions of the said act should be extended to apprentices upon whose binding out a larger sum than Five pounds or Ten pounds respectively, as mentioned in the said acts, was paid: Be it therefore enacted, etc., That from and after the first day of August One thousand eight hundred and twenty-three, the provisions of the said recited acts, so far as the same relate to apprentices, shall extend and be deemed and construed to extend to all apprentices upon whose binding out no larger a sum than Twenty-five pounds of lawful British money was or shall be paid; any thing contained

1 These words have been held to mean corporeal punishment by whipping, 5 Chitty's Burns' Justice, 540. But corporeal punishment by whipping, in case of females, is abolished by

1 Geo. IV. c. 57.

in the said acts, or either of them, to the contrary thereof in anywise notwithstanding.

II. And be it further enacted, That from and after the first day of August One thousand eight hundred and twenty-three, it shall and may be lawful for any two or more of his Majesty's justices of the peace, in any case where they shall direct any apprentice or apprentices to be discharged under and by virtue of the said recited acts, or of this act, to take into consideration the circumstances under which such apprentice or apprentices shall be so discharged, and to make an order upon the master or mistress of such apprentice or apprentices to refund all or any part of the premium or premiums. which may have been or shall be paid upon the binding or placing out of such apprentice or apprentices, as such justices in their discretion shall see fit; and in case any sum or sums of money which shall be so ordered to be refunded by such master or mistress, shall be neglected to be paid to the person or persons directed in any such order to receive the same, it shall and may be lawful for such two or more justices, in petty sessions, by warrant under their hands and seals, to levy the same upon the goods and chattels of such master or mistress, with the costs and charges of levying such distress, rendering the overplus of the sale of such goods and chattels, upon demand, to such master or mistress; and in case there shall not be sufficient goods and chattels whereon to levy the same, then it shall and may be lawful for such justices to commit such offender or offenders to the house of correction, for any time not exceeding two months, unless the sum or sums ordered to be refunded, with all costs, shall be sooner paid and satisfied.

III. And be it further enacted, That the said recited acts, and all and every the powers and provisions thereof (save and except such parts thereof as are varied, altered, or repealed), shall be as good, valid, and effectual for carrying this act into execution as if the same had been repeated in this act.

Note.-The Act 5 Vict. c. 7 (1842), extends the above recited acts to apprentices, "where no sum or premium of apprenticeship has been or shall be paid, on the binding of such apprentice."

(Leading Cases.)

1. An informal indenture is made valid, by entering on the service. The apprentice had been for three years in the service. "Observed on the bench, as in this case there is full evidence of an agreement between the parties, there would have been good ground, altogether independent of the indenture, for compelling either of them to enter regularly into a written contract," 19th July 1781, Rymer; Mor. 5726; 31st January 1807, Neil (Hume's Cases).

2. A present of five guineas to the master's wife after signing the indenture, held to nullify the same under the act 8 Anne, c. 9, that sum not being set forth in the indenture, 1727, Horseburgh; Mor. 585. But a present of one guinea to the master's wife, half a year after the indenture, was found not to void the indenture, but to expose to forfeiture of double the amount, 1738, M'Leod; Mor. 585.

3. An indenture to the shoemaking had no premium expressed in the indenture, though a bill for L.3, 3s. was given in lieu thereof. Both bill and indenture held null under the statute, 1754, Donaldson; Mor. 587.

4. A boy was apprenticed to an Aberdeen advocate, to whom three bills for 100 merks each were granted by the mother, as apprentice fee. The apprentice died in three months. The fee was not stated in the indenture, but in a certificate attached to an extract, and stamped with the proper duty, after the death of the apprentice. The court sustained the stamping, and held that the whole fee was due, in respect the non-performance of the contract was not occasioned by any fault on the part of the defender," 1760, Shepherd; Mor. 589. But a proportion of fee was held returnable on a master's death, 1683, Ogilvy; Harcarse, p. 34.

5. A master surgeon died within two years of an indenture of four years' duration. L.20 of fee was paid, and the master was to give bed and board. In an action for return of half of the fee, the court by a majority, awarded only one-third, "seeing the master had little benefit by his apprentice's service, during the two years it stood, and sustained the answer that the representatives offered to instruct him by a man past his apprenticeship, and he refused," 1711, Cutler; Mor. 583.

6. An apprentice locksmith, bound for six years and two months, enlisted within sixteen months of the lapse of the term. His two cautioners were charged to pay the stipulated penalty of L.15. One cautioner died. The other suspended, because, 1st, That he was only liable for one-half; 2d, That the master should have reclaimed the apprentice. The court modified the penalty to L.8, and refused costs, 1758, Sibbald; Mor. 588.

7. A cautioner for an apprentice goldsmith, being sued for damages, because of the desertion of the apprentice. Defence-an offer back within two or three days. Defence sustained, 1686, Malvenius; Mor. 583. See Case 13.

8. An apprentice to a wright left, and on being charged, together with his cautioner, for the penalty, found not sufficient to relieve, that the master had become a smuggler, and had left the wright shop, "the work, however, being daily carried on by experienced journeymen. There was no formal complaint entered, nor protest taken by the apprentice before his desertion, which had great weight with the court," 1775, Gardner; Mor. 593.

9. A master charged his apprentice with a small theft, before a justice, which he confessed, and was soon liberated on bail, and never convicted; and having immediately offered to serve out his indenture, the master refused to receive him, and prosecuted for damages. The court found, under the indenture, the apprentice and his cautioners liable for the one shilling of penalty each day, during the remainder of the term, and without deduction for board, which the master, by the indenture, was bound to give, 1776, Maxwell; Mor. 593.

10. An apprentice was bound to the Alloa Glass-house Company. The Company gave up business, and sold their stock," including the services of the workmen and apprentices engaged to their works." The Edinburgh Glass-house Company purchased, and the apprentice continued with them for several months, and then engaged with another. The sheriff granted warrant to imprison, until caution was found to return to the work; but on a suspension, a majority of the court, differing from the Lord Ordinary (Gardenston), suspended the warrant. "The court at first adhered to the Lord Ordinary's judgment, but afterwards the idea prevailed that indentures of apprentices were in their nature so far from being a subject of commerce that the specialty of this case could not justify a transference," 1789, Edin. Glass Company; Mor. 597. But indentures were found to subsist, though there remained only one partner in the original firm, 13th February 1827, Campbell; and where the apprentice continued in the service of one of the partners of a dissolved company, 11th July 1837, Pagan. Per Lord Jeffrey :-"The death or retirement of a partner, though it might in strictness of law import a dissolution of the company, would not necessarily discharge the obligations of an apprentice if the business were afterwards carried on as before, and he continued for a course of years to give and take implement in any way of the indenture," Jurist, vol. x. p. 90.

11. An apprentice letter-press printer was held bound to teach the apprentices, receiving the usual gratuity allowed by the practice of the trade. Per Lord President:"The master is not bound to keep a single journeyman; then it is clear the elder apprentices must teach the younger, for it is impossible the master could attend to them all himself, and at the same time carry on the other branches of his business. Apprentices must therefore teach, and it is their most natural employment," 21st November 1811; Ballantyne and Company.

12. An apprentice was bound to a currier who ceased to take out the statutory license, and thereby it was held the indenture fell, 16th November 1826; Watson. 13. An apprentice for three years, deserted in the third year, but the father, his cautioner, offered him back within the week, with an offer to work for the absent days in terms of the indenture, but the master refused to receive him, and charged for the penalty. The court suspended the charge, 13th February 1828; Learmonth.

Note. In this case Lord Cringletie as Ordinary, set forth so clearly the relative duties of master and apprentice, and which were approved of by the court, that the following extracts from his notes are here given :—

"By the true interpretation of the contract between a master and an apprentice, the former becomes to a limited extent placed loco parentis to the latter, from which emanate various reciprocal duties and affections. The master is not to expect from his apprentice, particularly if he be a boy, implicit and unexceptionable performance of the obligations in the indenture, but must overlook and pardon, though with proper censure, deviations and transgressions which do not amount to vice, or go the length of rendering the connection of the parties so disagreeable as to make it impossible to continue the execution of their contract. The same observation applies to the apprentice. In some cases the master's business diminishes and abates, so as to afford little opportunity for instructing his apprentice. In others, the master happens to be of an irritable temperament, and behaves at times with harshness, which in strictness of rule cannot be completely justified. In the intercourse of mankind, there must be a mutual forbearance to preserve the order of society, where the conduct of one to another does not amount to an intolerable breach. The master must overlook the failings of his apprentice, if not vicious and intolerable, and the latter those of the same sort of his master. In the case to which these observations apply, there seems to have been in contemplation what must always occur with young men or rather boys, namely, the foresight of idleness, and the apprentice absenting himself from duty without leave. But this is not declared to be a breach of indenture. The clause in the indenture presupposes days of absence; for he is to serve two days for each day's absence without leave. The Lord Ordinary does not mean even to insinuate that the apprentice has right to serve and be absent alternate days, or weeks, or months, and offer to make reparation by serving double the time of absence after the expiration of the indenture. On the contrary, such conduct would amount to an intolerable breach of the obligation in the indenture to serve faithfully and honestly, as it would be impossible for the master to place any reliance on the service of his apprentice. But what the Lord Ordinary means is, that the indenture presupposes an occasional absence for days without leave, which is not considered to amount to a breach; because the apprentice is bound to serve two for one, which he cannot do if he be not received back by his master after he returns from absence, and consequently infers the understanding of parties that, notwithstanding some cases of absence, the indenture was to remain in force."

14. An apprentice at a printfield, under an indenture without cautioners, deserted. The sheriff granted warrant to imprison "until he found caution to return to his service, and implement and fulfil his part of the indenture, and that under the penalty of L.10." Caution was accordingly found, and the apprentice returned, and again deserted. The cautioner offered the boy back, but the master refused him, because of a criminal charge in which he was implicated. In a suspension on a charge on the bond, the court held it competent to compel an apprentice under a summary warrant, to return to his service, but not to find caution to fulfil the conditions of his indenture, 9th February 1826, Wright. Per Lord Pitmilly :-" An apprentice may be summarily ordained to return to his service, but I doubt very much whether he can be compelled by summary imprisonment to find caution to fulfil all the conditions of his indenture." See leading cases as to power of summary imprisonment against a servant, not an apprentice, 4th June 1824, Raeburn; 9th July 1825, Gentle. (Master and Servant).

15. A boy aged sixteen entered into an indenture with consent of his elder brother, who was his cautioner. His uncle was his curator-nominate, and knew of the indenture. The boy having deserted, the magistrates of Glasgow decerned him to return to his service; and the court sustained the judgment, 7th March 1829; Harvie.

16. An apprentice to a calico printer deserted, and the sheriff, after taking his declaration," ordained him to return to his service within twenty-four hours, and continue therein, and to fulfil his enagements." He returned, and again deserted; whereon, without any new application or again hearing the apprentice, the sheriff granted warrant to commit him to prison, "therein to be detained until he finds caution, or otherwise satisfy the master." On a suspension, after the apprentice

had been eight months in prison, the court liberated. Per Lord Moncrieff:-" As to imprisonment, till the complainer finds caution to perform the stipulations of the contract, that is out of the question. It would just amount to imprisonment for three years for not performing his duties during the course of the indenture."

June 1832, Stewart.

21st

17. An apprentice wright under an indenture with cautioners, deserted, and was committed, until he found caution to the extent of L.30 "to return to his service, and continue therein, in terms of the articles of indenture, until the expiry of the time stipulated therein." The court were equally divided on the legality of the warrant: Lord President (Hope) and Lord Gillies were against the warrant, and Lords Craigie and Balgray in its favour. Bill was passed of consent, and no farther proceedings are reported, 20th November 1832; Bookless.

18. A verdict for L.20 was awarded against a master baker, for wrongfully causing his apprentice to be apprehended, for alleged stealing a bun, from which charge he was acquitted, 16th March 1833, Langmuir; 11 Shaw 571.

19. A verdict was given in favour of an apprentice to a saddler, who refused to do menial services (not mentioned in the Report), not in the line of his trade. Per Lord Pitmilly:"The master and apprentice are only bound in relation to the trade. If the apprentice agrees to go out of his trade, well, but he is not bound to do so. If it had been alleged that there was a separate contract to the contrary, the party making the allegation would have been bound to prove it. Some evidence was adduced as to the custom of the country, but no such question is here; the only question is on the indenture, which is the foundation of the contract, and I submit it as a proposition in law, that, when the terms of an obligation are clear we are not entitled to explain them by custom," 26th Sept. 1818, Peter; 2 Murray's Reports, 30.

20. An apprentice barber in Dundee, bound by indenture not to absent himself holiday or week-day, was found not bound to work any portion of the Sabbath, (House of Lords) reversing decision of the Court of Session, finding him bound to work between the hours of 7 and 10 o'clock on the Sabbath morning. Per Lord Brougham:-"It would have been a most unfortunate circumstance had your Lordships felt bound to give your support to the judgment of the Court below, which appears for the first time to have decided that which has been prohibited by the statute-namely, handy labour and working on the Sunday-can be enforced by the decision of a Court of Justice under indenture of apprenticeship," 20th Feb. 1837; Philips.

21. The justices found that an indenture was not binding, in a question with the first master, where the second master was aware that the apprentice was already bound, and their judgment was affirmed, 31st May 1825; M'Gregor.

22. A charge for payment of penalty was suspended and the apprentice liberated, because of "acts of intemperate and excessive chastisement, and not provoked or excused by any material fault on the lad's part at the time, though he had misbehaved on other occasions," 1794, Smart; Hume's Decisions.

23. A cautioner in an indenture being charged on letters of horning for the penalty in the indenture, on the ground of the apprentice having deserted, the court passed a suspension without caution. "If the apprentice had really been guilty of desertion, the master might have applied to the justices or sheriff to get him to return, and he might have sued the cautioner for damages," 7th July 1837; Munro.

24. A minor cannot enter into an indenture without consent of his father or guardian, 14th Nov. 1797; (Hume's Cases, 422). The apprentice was 18 years of age. 25. Where a workman, aged 17, and earning wages, entered into a contract with his employer for two years, deserted, and was convicted under the Act 4 Geo. IV. c. 34, it was held that minority was no objection to the contract and conviction. Per Lord-Justice Clerk :-" The court would set aside a contract in which advantage had been taken of the minor. But is it to be said that a young man of 17 years of age able to earn 20s. in the week, requires such protection?" 16th June 1853; Argo, (Justiciary) 25 Jurist, 450.

Note. The cases in the Justiciary Court under the Act 4 Geo. IV. c. 34, will be found under Master and Servant, see also below Criminal prosecution and Imprisonment.