The master having died at the end of two years, of a four years apprenticeship, the apprentice found entitled to recompence for the time which had not expired; but to the extent only of a third, not half, the apprentice fee.
Click here to view a pdf copy of this documet : PDF Copy
By indentures past betwixt Homer Grierson, chirurgeon in Dumfries, and Andrew Cutler and his friends, in 1706, the said Andrew is bound apprentice to the said Homer, to learn his art and trade of surgery, for the space of four years, and the master was to maintain him in bed and board; for which there was a separate bond given of the same date and witnesses for L. 20 Sterling, which was afterwards paid. About two years after, the master dies, and the apprentice, being cast loose, was forced to bargain with another, and pay a new apprentice-fee Whereon he intents a process against Margaret Littleton, his master Homer's relict, on the passive titles, for repetition and repayment of the half of the apprentice-fee, with annualrent since the payment, in regard he was destitute of insight in that calling, by his matter's death. Alleged, 1mo, Non constat, it was paid, seeing that bond bore borrowed money. Answered, it is clearly pars contractus, being of the same individual date, and before the same witnesses. The Lords thought it was sufficiently instructed to have been granted for the apprentice-fee. 2do, Alleged, it cannot be repeated condictione ob causam datam causa non secuta, seeing the two years entertainment and instruction was but soberly paid by the L. 20 Sterling, which will be but sixpence a-day; and the first two years of any apprenticeship is of little or no use to the master, seeing they can neither compound drugs, nor phlebotomize, nor apply any thing to purpose; so they are all that time reputed but a trouble and burden; the third year they are indeed worthy of their meat, and thereafter they are worth more. Next, it was his own fault he deserted the house, for she still kept the shop according to the privilege indulged to tradesmens widows, by the custom of royal burrows, and had a young man past his apprenticeship who served therein, by whom he might have been instructed and taught the time of his apprenticeship: and in a late case, 24th July 1707 betwixt Rule and Reid, the like was decided. Rule left 600 merks to Reid and other two neighbours, on this narrative, that they should oversee his interment, and inspect the education of his children. Reid, after the testator's death scarce ever came abroad, but was by sickness confined to his house till his dying day, and this being objected against his representatives, that he should have no share of the legacy, he dying before the cause was fulfilled, yet the Lords found he had right to his third part, seeing he had overseen the funerals, and outlived the term of payment: Multo magis here, the master having alimented and taught him for two years, which required a greater reward than any thing he got; and it was bona fide spent; so the master was more a loser than a gainer. Answered, The obligation was certainly sine causa quoad that space of time yet to run of the apprenticeship cut off by his death. And thus Stair, tit. Restitution, says, restitution takes place in these things quæ cadunt in non causam, though they at first came warrantably to our hands, if the cause fail; as in marriage dissolving within year and day, &c. And it is uncontrovertable by the common law, ubi operæ sunt locatæ, the work must be performed ere the reward can be fought; and if it be not fully performed, he must defaulk the merces and hire pro tanto, l. 38. D. locati. And as to the offer of supplying it by another, nullo modo relevat, there being a dilectus personæ by whom I chose to be instructed; for there is a vast difference betwixt tradesmen, both ratione ingenii, naturœ, doctrinœ, et institutionis. And what if an apprentice ran away from his master, not through default, but, ob sævitiam, for his cruelty, will not the apprentice recover a part of his fee though paid? And l. 31. D. de solutionib. determines, if an artificer undertakes a piece of work, and cannot do it, but his fidejussor offers to complete it, the other party is not obliged to accept it; for industria personæ eligitur. Replied, It is not usual to forecast such accidents and events as the master's death; and, by the practice of London, though the master or apprentice die the next week, there is nothing repaid, unless specially pactioned: and, in Holland, it is divided into annual payments, and not all given in at the beginning, as with us; though by the canon, civil, or municipal, laws it were otherways.—The Lords, by plurality, found a recompence due to the apprentice in that event of the master's death during the currency; but did not think it was to be divided equally pro rata temporis, seeing the master had little benefit by his prentice's service during the two years it stood; and therefore would not sustain the repetition for the half, but only for a third of the apprentice fee; and sustained that answer, that they offered to instruct him by a man past his apprenticeship, and he refused. The custom in Edinburgh is, that the deacon of the trade puts him to a new master.
