was argued at some length, and the judges delivered their opi nions as follows: Ld. Kenyon, Ch. J. The first question that arises in this case, is on the admissibility of the pacol evidence: this parol evidence was not offered to contradict the written agreement, but to ascertain an independant fact, and it was properly received in evidence. If two persons intend to enter into the relation of master and apprentice, and owing to some circunstance the relation of apprentice is not daly constitut ed, as if the indentures be not stamped, this shall not change the condition of the parties; if they cannot avail themselves of the condition on which they intended to stand, they shall not be put into another condition, in which they did not mean to place themselves; but when it is argued that this relation of master and apprentice can only be formed by using the term apprentice, it may be observed that the argument would lead to an absurd consequence; for then if the word clerk were used in regular indentures of apprenticeship, the clerk could not gain a settlement by serving under the indenture, merely be cause he was not retained eo nomine as an apprentice; but it would be a disgrace to our laws if we were obliged to decide according to words without considering their meaning: if the relation of master and servant be created by the contract of the parties, though they do not use the very words master and apprentice, yet if they use words tantamount it is sufficient. In this case the parties intended to form the relation of master and apprentice, and as that relation was not legally constituted fo as to give the latter a settlement as an apprentice, the relation cannot be converted into that of master and servant so as to give him a settlement as a yearly servant.-Grose, J. the parol evidence was not produced to contradict, but to explain the written agreement, and therefore it was properly received in evidence; the difficulty is to reconcile the cases of K. v. Bolton and K.v. Highnam; in the former lord Mansfield adopted the general rule that an intended apprenticeship shall not be converted into a service as an hired servant for a year, though he also said, it would not be considered as an apprenticeship unless the pauper were retained as an apprentice. Now it is stated in this case that in effect the pauper was to be an apprentice: an apprentice is a person who by contract is to be taught a trade, in contradistinction from a person who engages to serve another person generally: here the pauper was to learn the business of a carpenter, which words as clearly evince it to have been the intention of the parties that he should be an apprentice as any other words that could have been used. Lawrence, J. agreed that the evidence received by the sessions, was properly received, as it only went to ascertain a fact collateral to the written instrument, in order to explain the intention of the parties, the instrument being in some measure equivocal. Le Blanc, J. was also of opinion that the master having in consideration of a premium engaged to teach the pauper the business of a carpenter, and the pauper having agreed to serve the master three years to learn that bu VOL. IV. E siness, that this was a contract of apprenticeship. And though it was not a perfect contract of apprenticeship, in consequence of the agreement not being properly stamped, yet according to principle in all the cases, such a defective contract ought not to be converted into a contract of hiring and service. 8 Ter. Rep. 379. So in the K. v. Rainham, Tr. Ter. 41 Geo. 3. where the pauper had entered into an agreement ander seal with one Hills & sawyer living at Eltham,in the words and figures following: 'Ar agreement made the 8th of November 1784, between T. Hill of Eltham, sawyer, and W. Smith of the same place, viz "Smith doth agree with the said T. Hills to serve him for thre years from the date of the agreement in the following manner viz. for the first year to be paid 10s. per week, for the secon < year 118. per week, and for the third year 12s. per week; an the said T. Hills doth agree and promise to learn the said W Smith the art and mystery of a sawyer which he now follow and it is likewise agreed that if Smith shall wilfully lose any his time to the prejudice of Hills, he doth hereby agree to pay Hills 3s. per day,for all such neglect; and it is hereby furth agreed that if Smith repents of this agreement before the time e pires,he promises to pay Hills 10l.on demand, or if Smith is si or by any disorder or misfortune rendered incapable of work,n to receive any pay from Hills.' The agreement was signed, seal and delivered by both parties and lawfully stamped, and the pa per served Hills in Eltham, for two years and an half. I THE COURT, the sessions have stated the deed and the serv under it, in fact, leaving this court to draw the legal conclusio and that can only be done in one way, namely, that this wa contract of apprenticeship. The instrument was under se and need not be indented, and it has been determined, t the party serving under it need not be retained in exp words, as an apprentice, but it is enough if the purpose the contract be, that the one shall teach and the other le the trade; no technical words are necessary to constit the relation of master and apprentice, nor is it necessary there should be any premium given to the master. East's F 531. And if there be a legal binding as an apprentice, the p by inhabiting under it may gain a settlement, though it be a less time than seven years ;-thus in St. Nicholas v. St. P Ipswich, Mic. 10 Geo. 2, the pauper was put apprentice in parish of St. Peter's for four years by indenture, and there and served the time. By 5 Eliz. c. 4. s. 26. it is ena that persons may take apprentices for seven years at le and by section 41 it is declared, That all indentures, covena and bargains of or for the having or taking any appren otherwise to be made or taken than is before ordained, be clearly void in law to all intents and purposes.' therefore objected, that as the pauper was not bound for years as the statute requires, he had gained no settlement. It THE COURT of King's Bench were of opinion, that here was a settlement, for by lord Hardwicke and the COURT, the indenture is not void, but only voidable by the parties themselves, and by them only if they think fit to take advantage of it; and not by a third person; it can only be avoided by the master or servant who were parties to it; but not by the parish, who have had the benefit of the service of this apprentice; and the difference between this and the case of Cuerland v. Leland *,where the indenture was holden to be absolutely void for want of being stamped, is, that the statute 8 Ann. c. 9, not only declares that all unstamped indentures shall be void, but further adds, and not available in any court or place, or to any purpose that cer; and there is a subsequent clause, that no such indenture thall be admitted as evidence in any suit, to be brought by any of the parties thereto, unless such party in whose behalf it is produced shall make oath that the whole Sum really given with the apprentice was truly inserted. And yet the order in that case was grounded upon the indenture which was not stamped, nor was the duty paid; therefore the josuces admitted a matter in evidence, which they ought not to have done; and it hath been holden, that if the justices admit evidence which they ought not to admit, it is a sufficient reason for quashing their order. 2 Strange, 1066. Burrow's Sett. Cares, 91. And so it is, although the binding be defective in omitting art of the form required by the statute; thus in the K. v. Patres, Tr. 19 Geo. 2, the pauper was bound an apprentice the parish of St. Petrox, until her age of 21. 43 Ediz. c. 2. s. 5. enacts, That it shall be lawful to bind ach children apprentices till such woman-child shall And the to the age of one and twenty years, or the time of the alternative of marriage; though perhaps not obligatory her marrage. +-BY THE COURT. It is not void for want of he parties. For in the Ipswich case, the indenture was des not to be binding betwixt the parties, yet neither void voidable by the parish, as to the gaining a settlement. des, if there was no authority in this case, yet the inden ought not to be considered as absolutely void, but only table, for it would be extremely hard that a poor child who served many years under an indenture of apprenticeship, de the benefit of her settlement, because the justice's who made the indenture happened to be either ignorant ghgent. Burrow's Sett. Cus. 218. ettlement may also be gained where the apprentice is Master signthough the indenture is not executed by the master; ing a counter not essential to its validity; for in the K. v. St. part not essenthe Hill, Hil. 14 Geo. 2, it was objected that an validity of the void, not being executed by the master; but indentur mare was See p. 42. supra. * See this clause under title APPRENTICEs, div. iv, tal to the denture. Lee Ch. J. held that it made no difference if the apprentice himself was bound. 2 Bott. Const's ed. 547. So in the K. v. Fleet, Tr. 17 Geo. 3, the pauper was, when an infant, bound out a parish-apprentice until she should at tain her age of twenty-one years or day of marriage. The original indenture was properly executed by all the parish officers, and allowed by two justices. The counterpart way also allowed by the same justices; but neither the original in denture, nor the counterpart, were executed by the master The master nevertheless accepted the indentures, and the pau per, whom he considered as his apprentice till the apprentice ship expired. The question was, Whether, as the master ha not signed the counter-part, pursuant to the directions of 8. 9 Will. 3. c. 30. s. 5. whereby the master is required to exe cute a counterpart, the pauper had gained a settlement by th apprenticeship?-By lord Mansfield. There is no doubt. T binding was authorised by 43 Eliz. c. 2. s. 5. long before t act requiring a counterpart. But though the binding w valid if the apprentice was received, it was doubtful till th statute was made, whether the persons to whom such po children were to be bound, were compellable to receive the That statute was therefore made; and it subjects the mast upon his refusal to receive the apprentice, to a penalty: 1 in no other respect confirms the power of binding, which y already fully established.-Aston J. It has been so sett in the case of the K. v. St. Peter's on the Hill. Caldec Cases, 31. Apprentice not So an apprentice bound out by the parish will gain a set signing the in- ment by residing forty days under the indenture, although may not have signed the deed; this was determined in the v. St. Nicholas in Nottingham, Mic. 29 Geo. 3. The pa was by the churchwardens and overseers of St. Nicholas, the consent of two justices, bound apprentice unto a fra work knitter of Basford,which was in another county,unti age of 21. The indenture was under the hands and seal the churchwardens and overseers of St. Nicholas, and all by the said justices, and signed by the master, but it was executed by the pauper; under this indenture the pauper so his master in Basford five months, when he was legally dis ged under stat. 20 Geo. 2. c. 20*, by two justices, fron apprenticeship, on account of ill-treatment by the master. principal objection was, that the churchwardens and ove of the poor, with the consent of the justices of one cannot under the statute of the 43 Eliz. put out a parish prentice from one county into another county, unless th prentice execute the indenture; and that therefore this p did not by his service in Basford, under this indenture, settlement there. But by lord Kenyon, Ch. J. Persons re in one parish cannot be punished for not receiving appr * See title APPRENTICES, CO bound from any other parish. If the master do not reject the But a parish apprentice cannot gain a settlement under in. Two justices an dentures to which the two justices have assented separately; senting sepa for they are for this defect absolutely void; the K. v. Hamstal Ridware, Tr. 29 Geo. 3*. 3 Term Rep. 380. However, the assent of two magistrates to a parish indenture is sufficiently signified by one of them first signing it alone, and being afterwards present when the other signs it. The K. v. Wiswick, Hil. Ter. 40 Geo. 3. 8 Term Rep. 454. rately. The sessions may receive parol evidence of an apprentice- Evidence of ship, if the indentures bave been destroyed, or cannot be found apprenticeship, or produced; this appears from the following cases;-in the *See this case more fully under the title APPRentices, div. iv. But as it is a general rule, in regard to the proving of deeds, that the deed itself ought to be produced, and that no copy thereof or proof of its contents by witnesses ought to be received, without sufficient proof that the original is either destroyed or lost; or embezzled or detained by the adverse party; it seemeth that the same circumspection should be observed in admitting parole evidence of an indenture in this case. It seems also proper, to require proof of such circumstances as are essential to its validity, such as that it was upon paper or parchment duly stamped; and where a consideration was given, that the additional duty, payable in respect thereof, was paid. : This was the opinion given by the editor in a note upon the above case in the first edition of this work and that opinion has been sanctioned by the determination of the court in the following case, when it was decided that if the indenture of apprenticeship cannot be produced, it must be shewn that it is either lost or destroyed; and prov ing it to have been in the hands of a certain person, without further |