The surviving cautioner of an apprentice who has inlisted, found liable, in solidum, for the damages; but in no expenses.
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In 1750, Walter Fletcher was bound apprentice by indendure to Thomas Sibbald locksmith, for six years and two months, without any apprentice-fee. His brothers Andrew and William Fletchers became bound as cautioners for him, under the penalty of L. 15 Sterling.
In 1755, sixteen months before the elapse of the term, Walter Fletcher voluntarily inlisted himself in the regiment of artillery, and went immediately on board a ship ready to sail for London.
Thomas Sibbald charged the two cautioners with horning upon the indenture, for the penalty of L. 15; soon after which William Fletcher, one of the cautioners, died.
Pleaded in defence by Andrew Fletcher, the other cautioner, 1mo, That the indenture was null: For though it was wrote upon paper duly stamped, yet it had not been stamped in terms of the act 8vo Annæ c. 8. upon payment of the duty imposed upon apprentice-fees. 2do, That he can only be liable for one half of the damages incurred by the loss of the apprentice, as being one of two cautioners, and not bound conjunctly and severally. 3tio, It was the duty of Thomas Sibbald to have claimed back his apprentice, notwithstanding his having inlisted; in which case he must have been restored to him. 4to, The master cannot, in this case, be entitled to coils of suit, because he gave a charge for the whole penalty of L. 1.5, contained in the indenture, which was higher than his real loss; whereas he ought to have brought an action by summons, and claimed no more than the true amount of his damage, as it should be ascertained by proof.
Answered 1mo, The act 8vo Annæ, c. 8. does, not require that indentures should be stamped when no apprentice-fee is paid: For the purpose of the act was, to secure the duty payable upon apprentice-fees, of 6d. per pound on every sum under L. 50, and 18. per pound for every sum above L. 50; but where no duty is payable, no stamp is required: And it is the practice at the stamp-office, to refuse to stamp indentures which contain no apprentice fee. 2do, Cautioners, though bound simply, and without the words conjunctly and severally, are notwithstanding ultimately liable in solidum. They have indeed the benefit of division, if the other cautioners are also solvent; but if, at the time of the action, as in the present case, the others are insolvent, any one cautioner must make good the whole, Lord Stair, b. 1. tit. 17. § 12. Besides, in this case, the two cautioners became bound for the performance of an indivisible fact; and must therefore be liable in solidum; 14th June 1672, Sutherland, (Stair, v. 2. p. 84. voce Solidum et pro rata.); 6th July 1721, Patrick Grant, (Rem. Dec. v. 2. p. 57. voce Solidum et pro rata.) 3tio, The master is not bound to demand his apprentice back when he deferts his service, and voluntarily inlists, and is not impressed or carried off by force, Besides, in this case, by his going on board a ship ready to fail, the master bad no opportunity to make a demand. 4to, The master was entitled to give a charge upon the indenture for the penalty, otherwise the clause of registration would be inept; but in this; as in all cases of penalties, the sum charged for is to be understood as subject to the modifications of the Court.
The Lords found the defender liable in damages; which they modified to L. 8 Sterling; but refused expences.
Act. Johnstone.Alt. P. Murray.
Fac. Col. No 110. p. 196.
