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such apprentice shall, at any time or times thereafter, whenever he shall be found, be compelled to serve his said master for as long a time as he shall have so absented himself from such service, unless he shall make satisfaction for the loss he shall have sustained by his absence from his service, and so from time to time, as often as any such apprentice shall, without leave from his master, absent himself from his service before the term of his contract shall be fulfilled; and in case any such apprentice shall refuse to serve as hereby required, or to make such satisfaction to his master, such master may complain upon oath to any justice of the peace of the county or place where he shall reside, which oath such justice is hereby empowered to administer, and to issue a warrant under his hand and seal for apprehending any such apprentice, and such justice, upon hearing the complaint, may determine what satisfaction shall be made to such master by such apprentice, and in case such apprentice shall not give security to make such satisfaction, according to such determination, it shall and may be lawful for such justice to commit every such apprentice to the house of correction for any term not exceeding three months.
By $ 3, such application must be made within seven years after the end of the term of the apprenticeship.
And by $ 5, any party aggrieved may appeal to the next general quarter sessions, giving six days' notice to the justice, and entering into a recognizance within three days after such notice, with sufficient surety to try such appeal and abide the order of and pay such costs as should be awarded by the sessions.
Upon these acts Mr. Chitty, in his treatise on the law relative to apprentices, observes, that a more extensive power is given to the sessions than to justices in the first instance, that under the statute 5 Eliz. c. 4, one justice is only constituted a mediator, and has no power to proceed unless the master agree to be bound by his determination, and if he do not, the only course is to resort to the sessions; but if the master agree, though the apprentice do not, the magistrate may, by order under his hand and seal, direct him to be discharged, for no option is given by the statute to the apprentice, but only to the master.
The power given over indentures of apprenticeship to two magistrates, by the 20 G. II., c. 19, is confined to apprentices where the premium does not exceed five pounds.
Besides the power of discharging, the sessions have, by the 35 § of 5 Eliz. c. 4, power to cause such due correction and punishment to be ministered unto the apprentice as they may think fit, and by virtue of this clause they may commit the apprentice; and Dr. Burn observes, that this being left indefinite, it seems most apposite that the justices commit the apprentice to the house of correction for a time, to be kept to hard labour, or otherwise corrected, as the nature of the offence may require; but that this clause in the act does not restrain but enlarges the power of magistrates over apprentices beyond the power given them over masters, whom the justices cannot punish, and the magistrates may inflict corporal punishment, or discharge an apprentice at their discretion.
Proceedings at Sessions under 5 Elizabeth. An order of discharge may be made upon the application of either party; for an apprentice may be discharged from a bad master, and a bad apprentice from his master. -1 Saund 315, 16, 313, n. 2.
But the sessions cannot discharge without setting forth some canse in their order.—1 Bott. 577; 2 Str. 1013; 16. 704; Bott. 576.
The usual causes for which the apprentice complains against the master are cruelty and misusing his contract, either by neglecting to instruct him, or the like.
And when the master applies to get rid of his apprentice it is generally upon the ground of incorrigible behaviour.
There is no power to discharge for sickness, as, where the apprentice was lame and in the surgeon's opinion incurably inflicted,” for the master takes him for better or worse, and is to provide for him in sickness and in health.—1 Str. 89; Bott. 574.
The order must be under the hands and seals of four justices, and enrolled as the act directs, or the superior courts will set it aside.-1 Saund. 316, n. 5; 2 Salk. 470; 1 Bott. 572; 1 Str. 99.
The power of discharge is confined, in counties, to four justices at the least, and must be made at a general sessions, and not at a private sessions, or the order may be set aside. -1 Skin. 89; 1 Bott. 572.
It has been decided and settled, that the justices have power to order restitution of the premium received with the apprentice, or such part of it as they may think fit, as an incident to their authority to discharge.—1 Saund. 313, n. 3, cites 1 Salk. 67, 68; 2 Salk. 481, S. C.; Skin. 108; 1 Bott. 571, 576, acc.; 1 Stra. 79, contra, and see the proceedings in 2 Bernard K. B., 244, 296, and Chitty on App. Laws, 107.
If against the Master. Although the 5 Eliz. requires the discharge to be made on the master's appearance, the court held that the act must have a reasonable construction, and the sessions might proceed in the master's absence, otherwise, if he ran away, the apprentice could not be discharged.—2 Salk. 491; 1 Bott. 572.
Proceedings under Provincial Statute. By 14 & 15 V. c. 11, entitled An Act to amend the law relating to Apprentices and Minors.
Whereas there is no statute in force in that part of this province called Upper Canada, to provide for binding apprentices for a less term than seven years ; and whereas it would promote the general interest of society if shorter terms of apprenticeship were made legal, and the law relating to apprentices more clearly defined: be it therefore enacted, &c., that from and after the passing of this act, it shall be lawful for any parent to, guardian, or other person having the care or charge of any minor, not under the age of fourteen years, with the consent of such minor, to put and bind the same as an apprentice by written indenture, to any master mechanic, farmer, or other person carrying on any trade or calling for any term not to extend beyond the minority of such apprentice.
§ 2. That in any city or incorporated town, it shall be lawful for the mayor, recorder, or police magistrate, and in any county or union of counties, for the chairman of and at any court of general quarter sessions of the peace, to put and bind as aforesaid, to any master mechanic, farmer or other person as aforesaid, with the consent of such person, and with the consent of the minor, any minor who may be an orphan, or who may be deserted by his or her parents or guardian, or whose parents or guardian may for the time be committed to any common gaol or house of correction, or any minor who may be dependent upon any public charity or support: and such apprentice, and the master of such apprentice shall severally be held in the same manner as if such apprentice had been bound by his or her parent.
§ 3. That if any master of any such apprentice shall die, such apprentice shall by act of law, be transferred to the party, if any such there be, who shall continue the establishment of the deceased master, and such party shall hold such apprentice upon the same terms as his master if alive would have done, and any master may legally transfer his apprentice to any person competent to receive or take any apprentice; provided always, that no master shall transfer his apprentice except to another carrying on the same kind of business as himself.
§ 4. That every master shall provide suitable board, lodging and clothing, or such equivalent therefor as may be mentioned in the indenture, to his apprentice during the term of his apprenticeship, and shall also properly teach and instruct, or cause him to be taught and instructed in the art and mystery of his trade or calling.
§ 5. That every apprentice shall, during the term of his apprenticeship, faithfully serve his master, shall obey all lawful and reasonable commands, and shall not absent himself from his service, day or night, without his consent.
$ 6. That any justice of the peace, mayor, or police magistrate, shall have power, on complaint made before him on oath, by any apprentice against his master for any refusal of necessary provisions, misusage, cruelty or ill-treatment, after having duly summoned such master to appear before him to answer to the complaint, to hear and determine such complaint, and on conviction to levy such fine on the offender not exceeding the sum of five pounds currency, as to such justice, mayor, or police magistrate may seem meet, and to issue distress to collect such fine and the necessary costs, and in default of satisfaction of such distress, to imprison the offender in any common gaol for a term not exceeding one month. And any of the said justices, mayor, or police magistrate shall have power also, on complaint of any master against his apprentice for refusal to obey his commands, for waste or damage to property, or for any other improper conduct, to cause such apprentice to come before him, and to hear and determine such complaint, and on conviction, to order such apprentice to be imprisoned in any common gaol or house of correction for any time not exceeding one month.
$ 7. That if any apprentice shall absent himself from his master's service or employment before the time of his apprenticeship shall be expired, he shall at any time thereafter, wherever he shall be found in this province, be liable and may be compelled to serve his master for so long a time as he shall have so absented himself from his service, unless hes shall make satisfaction to his master for the loss he shall have sustained by his absence from his service. And in case such apprentice shall refuse to serve as hereby required, or to make such satisfaction to his master as aforesaid, or in case any such apprentice refuse to obey the lawful commands of his master, or in any other way or manner refuse to perform his duty to his master, or neglect to perform the
same, such master, or his overseer or agent, may complain on oath to any justice of the peace, mayor, or police magistrate, either in the county, city or town where such master resides, or in any county, city or town where such absconding apprentice may be found; and any such justice, mayor, or police magistrate may, by warrant under his hand and seal, cause such apprentice to be apprehended and brought before him, or some other justice of the peace, and upon hearing the complaint, may determine what satisfaction shall be made by such apprentice to his master; and in case such apprentice shall not give or make such satisfaction immediately, or if the satisfaction be of such a nature as not to allow of immediate performance, give sufficient surety to make such satisfaction, then in either case it shall be lawful for such justice, mayor, or police magistrate to commit such apprentice to the common gaol, or house of correction of such county, city or town, for any time not exceeding three months : provided always, that such imprisonment shall not release such apprentice from his obligation to make up his lost time to his master as aforesaid : and provided also, that where such apprentice shall not have left that part of this province called Upper Canada, or having left it, shall return thereto, such master shall not proceed under this act against such apprentice, except within three years next after the expiration of the term for which such apprentice shall have contracted to serve, or next after such his return, as the case may be.
$ 8. That any person who shall knowingly harbour or employ any absconding apprentice, shall be liable to pay to the master of such apprentice the full value of such apprentice's labour, which value shall be deemed and taken to be the value which such master would have received from the labour and service of such apprentice if he had continued faithfully in his service, which may be recovered in any court having jurisdiction where such apprentice may be employed, or where his master may reside.
$ 9. That if any apprentice shall become insane, or be convicted of any crime of the degree of felony, or be sentenced to the provincial penitentiary, or abscond, his master may avoid the indenture of apprenticeship, from the time he shall give notice in writing of his intention to do so to the other parties to the indenture, either by serving them with such notice or copy thereof, or by inserting the same in some newspaper of the county or city where such master's establishment is situated, or in the Canada Gazette : Provided always, such master make such election within one