The term "apprentice" is generally used in this country to designate a class of persons who labor for others under statutory conditions or requirements in order to learn some trade or vocation. An apprentice in such a case differs from a servant in this, that the employment of the former is regulated by positive rules of law, while the obligations of the latter depend wholly upon contract. If there were no restrictive statutes in a particular State, the apprenticeship would be governed by the general rules of the law of contracts.

Apprenticeship had its origin in the Middle Ages in connection with membership of the trade guilds. Many trades could only be practised by those who had the "freedom" of the guild. This could only be obtained by an apprenticeship to some member of the guild for a time varying according to local usage. ber of persons following a trade could thus be practically limited by rule. The rules governing guilds were rigorous. They prevailed in continental countries as well as in Great Britain.

The num

This subject may be considered under two aspects: first, where the apprenticeship is created by mere contract, and second, where it is created by statute. In the first case, assuming that the apprentice is a minor, it would still be necessary that he should enter into the contract. His father must also assent, as he is entitled to the child's custody and his services. The contract of the infant will not be void on account of his infancy, but only voidable. It would not be absolutely binding on him, as it would not fall within the class of necessaries. It is still plainer that an adult could not be bound unless he executed the agreement.2 Should a father enter into covenants for the conduct of the son, he would be liable, from his own estate, if the covenants were broken. In order to constitute an apprenticeship, there must be mutual agreements to teach and to learn a trade. A mere agreement on the one hand to serve and on the other to supply food, clothing, and support will be a contract of hiring instead of an apprenticeship. In other respects than these the general law of contracts may be resorted to for rules applicable to the case.

The subject of apprenticeship by statute presents two distinct cases: one, where the apprenticeship is voluntary in its origin; the other, where it is compulsory. The special rules governing

1 Rex v. Annesby, 8 B. & Ald. 584.

2 Rex v. Ripon, 9 East, 295.

8 Cuming v. Hill, 3 B. & A. 59. Ap

prenticeship by contract is recognized in Crombie v. McGrath, 139 Mass. 550.

Rex v. Billinghay, 5 A. &. E. 676.

this branch of the subject were worked out in England in construing a statute passed in the reign of Queen Elizabeth. The English courts did not favor this legislation, applying it only to trades that existed at the time of its enactment. New trades were left to the general law of contracts. Any compulsory features of trade apprenticeship were abolished in 1814, under the influence of the writings of Adam Smith and his followers.2 There were still compulsory features in cases that might arise under the Poor Laws. English decisions rendered while apprenticeship was compulsory will be useful in disposing of cases in this country involving apprenticeship in general.

Voluntary apprenticeship will be considered under the following heads I. Method of creation; II. Effect of the relation; III. Remedies for breach of the agreement; IV. Dissolution.

I. Method of creation. The statute of Elizabeth provided that none should be apprentices except minors. The term of service should in general be seven years. The relation must be created by an indenture (or instrument under seal). No agreement constituted an apprenticeship without an indenture. There might be two or more masters named in the indenture. If one died during the continuance of the apprenticeship, the party bound would become the apprentice of the survivor. (a) If the term mentioned in the indenture was less than seven years, it was voidable and not wholly void.8

The contract of the master being to teach a trade to the minor, it contains certain implied conditions, e. g., that the apprentice is ready and willing to be taught, and also that he shall continue in a state of ability to perform his contract. If he is prevented from doing that by permanent illness, he is excused.10

The contract is personal, and would regularly terminate with the death of the master.11 This result might be prevented by words in the indenture continuing the apprenticeship to the master's representatives in case of his death.12 There is also an implied con

1 5 Eliz. c. 4, §§ 25–48.

2 54 Geo. III. c. 96.

* 5 Eliz. c. 4, § 36.

4 Id. § 26.

5 See Id. §§ 25, 28, 30, 32, etc.

8 Gray v. Cookson, 16 East, 13. 9 Raymond v. Minton, L. R. 1 Exch. 244.

10 Boast v. Firth, L. R. 4 C. P. 1. 11 Baxter v. Burfield, 2 Strange, 1266. 12 Cooper v. Simmons, 7 H. & N. 707. In case of a master's death, his estate would be liable for the support of the

Rex v. Margram, 5 Term R. 153; Phelps v. P. C. & S. R. R. Co., 99 Pa. St. 108. 7 Rex v. St. Martin's, Exeter, 2 A. & E. apprentice. 655.

(a) A contract of apprenticeship is not invalid by reason of the fact that the master is a corporation. Burnley Equi

table Co-operative and Industrial Society v. Casson [1891], 1 Q. B. 75.

dition that the contract shall be performed at the place where the business was carried on at the time of the execution of the indenture.1

Apprenticeship is to be treated as a fiduciary relation. The master cannot assign the apprentice to another master by his own act.2

II. Effect of the relation.—(1) Rights and duties of the master. It is common to insert in the indentures certain promises and obligations which each of the respective parties undertakes towards the other. A question of some difficulty then arises, whether the failure to observe these provisions is vital to the contract or only a ground of action for damages or for other relief suitable to the breach of that particular clause. The court in determining this point looks at the nature of the clause violated and the general purpose of the contract. On the part of the master it would be held to be vital that he should continue to follow the trade which he had engaged to teach the apprentice. The same rule would be applied if the masters were partners, and one of them should retire. A partial withdrawal from business might not have that effect.5 On the other hand, misconduct by an apprentice might not determine the relation. Permanent desertion on the apprentice's part would suffice. (a) There might be a special clause in the indenture making misconduct on the part of the apprentice vital. The master could not order the apprentice to do an unlawful act, as, for example, being apprenticed to a barber, to shave customers on Sunday.9

A master is entitled to the earnings of the apprentice, and can bring an action against one who entices him away or harbors him after desertion.10 So the master might waive the wrongful act, and simply sue the enticer for the work and labor done by the apprentice.11

(2) Rights and duties of the apprentice. - These depend on the statute and the covenants in his behalf in the indenture. An apprentice can only be required to render the service for which

he was indentured. He has a right to be treated with kindness. The master is, to a certain extent, in loco parentis. If he were assaulted by the master, and had reasonable ground for apprehending serious bodily harm, he would be justified in leaving the serv· ice.2 The courts in England will not uphold an agreement of apprenticeship which is not for the infant's benefit. Accordingly. a clause that wages which would otherwise be payable to him should not be paid if the master's business should be interrupted by a turn-out, cannot be upheld, even though he is allowed during the turn-out to be employed in other ways.3

III. Remedies for breach of the agreement. In an apprenticeship regulated by statute, the remedies for breach of the contract are generally to be sought in the statute itself. These are not merely the ordinary remedies provided in contract law, but are frequently penal, or even of a criminal aspect. Penal legislation for breach of contract would not be justifiable in case a servant were an adult. The foundation of such laws rests in the infancy of the servant and the power of the State under the parens patriæ doctrine to regulate his conduct while in a condition of disability.

IV. Dissolution. - In England, since the statute of 54 Geo. III. c. 96, this subject is placed on the footing of contract law. The contract will be dissolved upon any act on the part of one of the parties which substantially defeats the purpose of the contract. In this country, wherever the old theory of the statute of Elizabeth prevails, stringent rules concerning dissolution are to be looked for in the statute itself.4

Compulsory (or parish) apprenticeship was from an early date based on an entirely different theory from that of trade apprenticeship. It was in substance a branch of the Poor Laws. Apprenticeship, in this aspect, was a mode of taking care of pauper children. Its compulsory features have continued down to the present time, notwithstanding the disappearance of the compulsory element in ordinary trade apprenticeships. The earliest statute on the subject was passed in the reign of Queen Elizabeth." The same kind of legislation was continued down to 7 & 8 Vict. c. 101. Such children are now bound out by a board of guardians of a union or parish, while the Poor Law commissioners may pre

1 McPeck v. Moore, 51 Vt. 269.

ships cannot be cancelled or annulled ex2 Halliwell v. Counsell, 38 L. T. N. s. cept in the case of death, or by the order or 176. judgment of the county or Supreme Court

• Meakin v. Morris, L. R. 12 Q. B. D. for good cause. Laws of 1871, ch. 934. 352.

• Thus in New York, trade apprentice

5 43 Eliz. c. 2, § 5.

scribe the duties of the masters and the terms or conditions to be inserted in the indentures, though the rules are rather treated as directory than vital. An infant parish apprentice and his master, it would seem, cannot by mutual consent vacate the indenture.2

Apprenticeship under American law. In the various States of the Union the distinction between voluntary and parish apprentices is substantially recognized.

Apprenticeship must, in general, be created by indenture in the form authorized by the statute of the State. If not so created, it will be, in some States, voidable and in others void.3 A writing without seal is not an indenture. The courts differ as to the power of a father at common law to bind out the child during minority without his consent.5 Under the statutes, he must, as a rule, execute the instrument required. When the statute is complied with, the articles of apprenticeship are binding on the infant. In some States the consent of the parent or guardian is required. This requirement would not be construed to create a personal obligation on the parent's part.8 Still, if the parent or guardian executed the instrument, he might be personally liable for the wrongful acts of the apprentice. Unless the statute were specific, it would not in general be necessary to name the particular trade in which the apprentice was bound to serve.9

I. Rights and duties involved in the relation. As between the master and the apprentice. (1) There are commonly in the indenture covenants on each side, the master on his part agreeing to teach, and the servant to learn, the trade, etc. A breach of one of these promises does not necessarily subvert the relation. The covenants in that aspect are independent.10

Queen v. Inhab. of St. Mary Magdalen, 2 E. & B. 809.

Ivins v. Norcross, 3 N. J. Law, 977;
Balch v. Smith, 12 N. H. 437; Pierce v.

2 King v. Gwinear, 1 A. & E. 152; Massenburg, 4 Leigh (Va.), 493. Remarks of Parke, B.

3 See Luby v. Cox, 2 Harr. 184; Bolten v. Miller, 6 Ind. 262; Tague v. Hayward, 25 Ind. 427; Fowler v. Hollenbeck, 9 Barb. 309; Brown v. Whittemore, 44 N. H. 369; see in New York, Laws of 1871, ch. 934.

♦ Commonwealth v. Wilbank, 10 Serg. & R. 416; Hall v. Gardner, 1 Mass. 172; Squire v. Whipple, 1 Vt. 69.

Day v. Everett, 7 Mass. 145, 147; Van Dorn v. Young, 13 Barb. 286; Commonwealth v. Baird, 1 Ashm. (Pa.) 267; United States v. Bainbridge, 1 Mason, 71, 78.

• Matter of McDowle, 8 Johns. 328;

7 Woodruff v. Logan, 6 Ark. 276; Kingwood v. Bethlehem, 13 N. J. Law, 221.

8 Whitmore v. Whitcomb, 43 Me. 458. See People v. First Judge of Livingston, 2 Hill, 596. See 2 R. S. (New York) 154, § 2, as to consent. The law of 1871, ch. 934, requires the parent to execute the indenture.

Fowler v. Hollenbeck, 9 Barb. 309; People v. Pillow, 1 Sandf. 672. The New York statute of 1871, ch. 934, is very distinct, stating that it shall not be lawful to take the apprentice unless the statutory requirements are complied with.

10 Powers v. Ware, 2 Pick. 451.