JOHN LUBY vs. GARRET COX, 2 Harr. 184

By the Court. Layton, Justice, dissenting. J. M. Clayton, Chief Justice. Regularly, under the plea of non est factum in this case, perhaps nothing could have been contested -but the execution of the indenture. But it is agreed by the counsel that the deed shall be tested as fully on this issue as if the objections to it had been specially pleaded, and these questions had been presented on a demurrer to such a plea. The act is positive that the presence and approbation of the justice must appear by a certificate or note under his own hand. Sec. 4. That does not appear in this case.

We are not satisfied that the other objections are available. But admitting now that the indenture ■is justly open to one of the objections which have been taken to it, and that the binding is invalid, because not authorized by or conformable to the act, we are still quite clear that in this action brought by the apprentice himself against the master, and in the absence of all pretence from these pleadings now before us, of any desertion of the master or other failure by the apprentice to fulfil his indenture, the covenants sued upon are not to be considered as. void. The 15th

section of the apprentice act, which enacts that “ any binding of a minor as an apprentice or servant, and any assignment of a person being, according to this act, an apprentice or servant, and not authorized by and conformable to this act, shall be void,” must be construed in connection with the very

section immediately preceding it, and the 4th

section of the act must be construed in reference to both. The 14th

section in substance provides that, if any person being held as an apprentice or servant, by virtue or color of any indenture or deed, shall have cause of complaint against his or her master, for cruelty, ill-usage,, bad treatment, breach of contract, the invalidity of the binding, or other sufficient matter, such person may prefer a petition for relief to the court, the chancellor, or any judge in the county wherein the master resides, setting forth such cause of complaint; and that the tribunal so applied to shall issue a summons for the master to answer such complaint, and “ shall have power to discharge the petitioner from his apprenticeship or servitude, or to order the master to assign the petitioner to some other master, if the apprentice or servant be assignable, or to pay the costs, and to compel obedience to any such order by attachment and imprisonment.

This

section then empowers the said court, chancellor or judge, to annex and make a part of any order or decree in the premises, any terms which shall be deemed just or equitable, of to give directions concerning the treatment of the petitioner; and if the said court, chancellor or judge, shall he of opinion, that for the invalidity of an indenture, or deed of apprenticeship or servitude, or of an assignment thereof, or for other cause a petitioner ought to he discharged, hut that he or she ought nevertheless to be hound as an apprentice or servant; in such case the said court, chancellor or judge,, shall have power, after pronouncing such discharge, to proceed and hind the said petitioner am, apprentice or servant hy indenture or deed, Syc.

This

section then prescribes the mode of avoiding an indenture by an apprentice for invalidity of the binding, and it is the binding only which the next

section makes void for non-conformity with the previous provisions of the act.

Construed together, as all parts of the same act must be, which are in reference to the same subject matter, it is evident that even the apprentice himself cannot treat his indenture as absolutely void for invalidity of the binding, although “ void ” is the word used in the 15th section; for the application to the court or judge for relief would be nugatory, or at least unnecessary, if the apprentice might, without the aid of the court, the chancellor or judge, hold his indenture void and plead non est factum,- or demur to it in an action upon it for covenant broken.

The indenture is voidable for invalidity of the binding arising out of a defective execution and not void, even when the apprentice seeks to annul if. It can be avoided by the court, the chancellor, or judge,, on a proper application, by reason of its invalidity, and the appren tice may be bound again after his discharge is pronounced; or any terms which the court or judge applied to may deem just or equitable, may be annexed to and made part of the order.

These excellent provisions in the act would be utterly unavailing were we to hold the indenture absolutely void, even as against the apprentice, and without them great injury would be very often sustained by the masters of apprentices, who would be thus deprived of their services whenever a defect in the form or attestation to an indenture (which often happens in cases of binding by justices of the peace) should be discovered. Under our present practice, authorized by the 14th

section of this act, we rebind the apprentice to his master whenever nothing is complained of but a formal defect in the first binding, and it is equitable to do so. Were his indenture absolutely void, this could not be done in any case without the renewed assent of himself, or his parent or guardian. There are many cases where an instrument is declared to be void by positive statute, and in the strongest terms, yet where the courts have uniformly construed the term as synonymous with voidable. Thus the 26th

section of the statute of 5th Elizabeth,

chapter 4, directs'that an indenture of apprenticeship shall not be made for a less term than seven years, and the 41st

section provides “ that all indentures, covenants and bargains of, or for the having or taking an apprentice, otherwise to be made or taken than is by that statute ordained, shall be clearly void in law to all intents and purposes. Yet, in Gray vs. Cookson, 16 East. 25-6-7, it was admitted by the plaintiff’s counsel, and held by Lord Ellenborough, Willes and Ashurst justices, on the authority of The King vs. The inhabitants of St. Nicholas, in Ipswich, Burr. Settl. Cases, No. 28, p. 91, and 2 Strange 1066, that the indenture, though for less than seven years, was voidable only and not void.

In the case “ between the parishes of St. Nicholas and St. Peter, in Ipswich, (2 Strange 1066,) the 41st

section of the stat. 5. Eliz. c. 4, was insisted on to support an order of sessions — but the court said, “ the word void must be construed voidable, as on the stat. Westminster 2nd. finis ipso jure sit nullus, it is yet a discontinuance. Hob. 166. And on 23 Henry 6, c. 13, you must plead specially and cannot avoid a bail bond on non est factum.

Here the indenture has had its effect, and neither master nor servant have taken advantage of the objection; and as to the case of Cureden and Laland, on the stat. 8 Ann, chap. 9, (which is the case in 2 Strange 903, where an indenture was declared void because the duty of 6d. in the pound was never paid by the master,) the court distinguished this case from that, by saying there were words, (to wit: in the stat. 8 Ann, ch. 9, § 30,) prohibiting the giving the indenture in evidence.” It has been held in construction of the stat. 5 Eliz. chap. 4, that the apprentice must avoid the deed by quitting his master’s service, where the binding was for less than seven years.

This was the view taken in the case of Guppy vs. Jennings, Anstruther’s Rep. 256, which has been cited at the bar. That was an action by the master against the father, who in an indenture for five years only, had covenanted that his son should serve the plaintiff during that time, and that he (the father) should find his son in clothes and medicine. The defendant pleaded performance of his covenants till a certain day, when the apprentice quitted the service of the plaintiff, and so avoided the deed.

On demurrer to this plea the court held it good, not on the ground that the indenture was void in its inception or creation, but clearly because it was voidable by the apprentice, who had avoided it by quitting the service of his master. M'Donald, chief baron, therefore, well said, “ these covenants (meaning those of the father for the son,) are completely dependant upon the principal agreement, and must fall to the ground when it is avoided.

So too, Hotham, baron, and Thompson, baron, viewing the indentures as completely avoided by the act of the apprentice in quitting the service, pronounced the deed, under those circumstances, to be void; but manifestly it was not their intention to apply this language to the deed before it had been avoided.

And the whole case, instead of proving that the deed was void ab initio, shows that both court and counsel held it voidable only until the desertion of the apprentice; and that the only question was whether the deed was absolutely void, as against the father, in a suit by the master, after the apprentice had avoided it. The fact which made the voidable deed void, to- wit: the quitting the service of the master was, therefore, specially pleaded in bar to the action; which would have been very idle had the deed been void without it.

And in accordance with this settled construction of the stat. of Eliz., is the declaration of Mansfield, chief justice, in the case of Gye vs. Felton, in 4 Taunton 877. That was an action for harboring an apprentice whose indenture was declared void by the statute, because the master to whom he was bound was not a house-keeper, and of the age of twenty-four years. The court held the action could not be maintained; because, besides the clause above recited, making the indenture “ clearly void to all intents and purposes,” it is in the same

section further provided “ that every person taking an apprentice contrary to the tenor and true meaning of that act, shall forfeit and lose for every apprentice so by him taken, the sum of £10: so making it not only void as against the master, but unlawful, and therefore, it became impossible that the master could recover damages for the violation of a supposed right, originating only in a contract which the law forbade.

Mansfield, chief justice, in delivering the opinion of the court says “ the words in the statute declaring the indenture clearly void to all intents and purposes,” certainly do at first startle one. Yet there have been (says he,) many cases cited, which say that indentures which do not conform to the act shall be only voidable and not void. If, (he continues,) the toord voidable ivere applied to adults, it would be extremely strange : ivith respect to infants, if applied to them, one can understand it.

In all those cases, the question arose with respect to the rights of infant apprentices; but there has been no case cited, where the doctrine that the contract is voidable, not void, is applied to the case of a master, and it would be very wonderful if there were. The decision in Smith vs. Birch, 1 Sess. Ca. 222, is in coincidence with the principle of this case, it being held that where the master took a deed poll instead of an indenture of apprenticeship, in non-conformity with the stat. 5 Eliz. c. 4, § 25, he could not maintain an action upon it, against a person for enticing away and detaining his apprentice.

Gray, for plaintiff B. H. Bayard, for defendant We are, therefore, of opinion; that, on the showing now made, the action of the apprentice on this indenture against the master is sustainable : and, in this view of the case, it becomes unnecessary to anticipate what other questions may arise during the trial. The case when opened before the jury, may be presented in a very different aspect: but on the issue of non est factum before us at present, let there be Judgment for the plaintiff.