An apprentice had been committed to prison, on an accusation of theft; had confessed, and had been liberated on bail. He offered to return to his service. His master found entitled to refuse; and to have right, from the apprentice and his cautioners, to damages for each day's absence, till the expiry of the indentures, without deduction for maintenance; which the master would have been bound to afford, had the apprentice continued in his service.
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An indenture betwixt a master and an apprentice bore, That for each day the latter should absent himself without leave, he should pay a shilling, or two lays service, at the master's option; and contained likewise a stipulation, that the master should pay the apprentice a certain sum weekly, in name of board. The apprentice was accused of theft by the master, and thrown into prison, having emitted a declaration before a Justice of Peace confessing his guilt; but the theft being small he was soon set at liberty, and offered to return to his service; taking protest, that if not received, he and his cautioners should be free of all the obligations of the indenture. The master refused to receive him, and brought action for the penalties, and for damage sustained from the indenture not being fulfilled.—Urged in defence: The extra-judicial declaration was no evidence to convict of theft, and he now retracted that declaration.——The Lord Ordinary found, That the defender was guilty of a breach of his indenture; and though liberated on bail to stand trial, and no prosecution had been brought, his master was not bound to take him back; and found him liable to his master for one shilling of damages for each day from the period of his imprisonment to the expiry of the indenture, deducting from this sum the expence of his maintenance, at the rate stipulated in the indenture:—But the Lords, on a reclaiming petition, altered the last part of the judgment, and found, That the apprentice and his cautioners were not entitled to any deduction on account of maintenance.
