Art. 2. CH. 12. prentice in Upper Canada; the master removed with the child into Massachusetts. The mother applied to the court to have her delivered to her, and a writ of habeas corpus was issued, and the court refused to order the child to be delivered to her mother, she having married a second husband, but allowed her to remain with her master, with whom she wished to live. 3 Burr. 1434 It was urged on the mother's part, that the indentures made in -2 Stra. 982. Upper Canada were void here. 6 Mass. R. 273, Commonwealth v. Hamilton. In Mitchel 5 East. 39, Case. 4. An apprentice may bind himself not to set up and pursue his trade in a particular parish, for a reasonable consideration. This is not against the public interest, as he may pursue his trade in any other place. § 5. An apprentice was impressed into the public service, Landsdown's who was willing to enter into it; the court refused to issue a habeas corpus to bring him up at the request of the master, and said, that "if the party himself, being of competent years of discretion, do not complain, we cannot issue the writ on the prayer of the master, who has his remedy by action if his apprentice have been improperly taken from him. 5 East. 39, Eades v. Vandeput. § 6. This was an action against the captain of a ship of war by the master of an apprentice, to recover wages for the services of said apprentice, who, having been impressed, was detained on board the deft's. ship, who was informed by the apprentice that he was one. This was deemed sufficient to induce the deft. to make inquiries as to what the boy said. 3 Maule & S. Judgment for the plt,, the master. The tort of enticing may be waived, and assumpsit lies. 191, 202. 5 T. R. 715, § 7. If an apprentice, of seventeen years of age for instance, Davis' Case. bind himself for seven years, and in the contract, state he is fourteen years of age, he must be discharged at the age of twenty-one years. The court held, that " every indenture of an infant is voidable at his election, and in such cases the master must trust to the covenant of those who engage for the infant." It was, however, after this, as above, the court doubted if a minor cannot bind himself by his indentures of apprenticeship, the contract being evidently for his benefit. The authorities on the whole are clear he cannot. It has sometimes been made a question, if a father, and after his death, the mother, can bind a minor child to a master so as to entitle him to its services, and if it leave his service to an action against the parent, merely by parol and not in writing. Very numerous are, and have been, the cases in which the contract has been by parol only, though it is laid down in some books, that an apprenticeship must be by deed; yet this must mean only where certain statutes required a deed, as they sometimes do, and sometimes deeds by indenture; for it is clear in the case of Rex v. the Inhabitants of CH. 13. Art. 1. Laindon, that an apprenticeship may be constituted by a mere writing and without deed; and it is settled in many books that a servant may be made, or bound by parol. There is no statute in this state that requires a mere writing in such cases, and where a mere writing is not required by any statute, it is no more binding when made, than a contract by parol is. It seems clearly to follow, that a binding by parol is valid in all cases, in which statute law does not require a deed or writing. Hence one of age may clearly bind himself, at common law, apprentice or servant by parol. So may the parent, his or her minor child, unless this binding out by the parent be an under- Burr. Sett. Cases, 12, taking "for the default or misdoings of another," and so a case 248, 578.within the statute of frauds. But is the case of a parent and 1 East. 95.minor child within this statute. The statute speaks of the in which A, for instance, undertakes for "the debt, default, or the Peace, misdoings" of B. It goes on the ground of a debt, &c. and B. 55. so supposes the person undertaken for, capable of contracting a debt. This is not, generally, the case of a minor. case Com. D. S. On the whole, the best opinion is, that this statue does 6 Johns. R. not extend to these cases of parents and minor children, who 274.— have no capacity to contract or undertake, and to whom, fail- Dougl.70.-1 Ld. Raym. ing to pay debts, defaults, and misdoings, are not properly at- 688tributable; but the engagement of parents in such cases, are Stra. 1267.—— properly their own concerns. 9. The master cannot send his apprentice abroad, but Salk. 66, 68.where such power is in the contract, or in the nature of the 1 Sid. 216.— trade, or for the apprentice's health. If the master die, the Reeves D. R. executor cannot retain him, and the better opinion seems to be he is not bound to maintain him. 345. CHAPTER XIII. ACTION OF ASSUMPSIT. ARBITRATIONS AND AWARDS. ART. 1. General principles. § 1. When parties submit to arbitration, there is an implied assumpsit in each to abide by the award. This is a remedy by the act of the parties, whenever the award is voluntarily performed; but if not so performed, and the party in whose favor it is made finds it necessary to resort to an action to enforce his former right or the award, his action is generally assumpsit, or debt on the award. This action of debt on the award, will be considered in Ch. 141, In this chapter I shall examine the action of assumpsit CH. 13. on an award, and also the action of assumpsit on the original cause of action; though an award has been made, yet it will not support the first and bar the last, unless it be a good award : 1 Saund. 20, for there can be no action grounded on an award, unless it be a good one, and none but such a one can bar the former cause of action. It is therefore necessary briefly to see what is a good award, and how the action is affected by it. 61.-2 do. 127.-8 D. & E. 571.-3 D. & E. 592. 3 Wood's 5 Co. 78. 1 Bac. Abr. 155, 83, 129. -1 Burr. § 2. An award is as a judgment according to reason and Con. 3, 8. conscience, " and must be taken liberally, according to the intent of the arbitrators," and not strictly, as other judgments are, and the award can be explained only by itself; and an arbitrator is defined to be "Judex honorarius, non lege datus, .Colclough. sed ab iis qui litigant electus, qui totius rei habit potestatem ad arbitrandum, non ut lege, et stricto jure, sed prout ipse æquum esse existimet." To make the award good it must have the properties hereinafter mentioned. 271, Hawkins -2 Stra. 1024.-Kyd on Awards. 3 Wood's 1 Com. D. 14, 22 2 Ld. Raym. 103-Cro. Car. 433. ART. 2. 1. The submission must be by parties capable of contracting, for they are bound by it; they contract to be bound; and every one who can release his right may be this party; for any one who can release his right may settle it by arbitration. Again the submission must be in form, but it may be by parol, or in writing, conditional, or absolute, or general, as to all matters in dispute, or particular, as to some one. But infants may be arbitrators, as they are of the parties, choosing, if they be capable, and have discretion. But a person of a non-sane memory cannot be an arbitrator, nor one who, by nature or accident, has not discretion; nor one who is not sui juris, as a slave; nor a feme covert; nor one attainted of treason or felony; nor can a man be an arbitrator in his 12 Johns. R. own cause; nor one interested; he must know the law and be 2 Mod. 73.1 Com. D. 519-8 D. & E. 139. 21 H. 6, 30. -8 Co. 81. -4 Mod. 226. -16 East 209. 397.-Bac. Abr. 194. 1 Rol. Abr. 244. -3 Wood's Con. 4.- 447.--3 Leon. 53.-5 D. & E. 9, Pearson v. Henry impartial. 2. So B may submit for himself and D, and B is bound to perform, though D is a stranger. So a guardian may bind Kyd 20, 21. himself, that a minor shall perform the award. And so an administrator, as such, may submit; but if the arbitrator award less than is due to the estate, the administrator must answer for the surplus to the heirs; for the submission is his own act. But the practice now generally is for executors and administrators to submit to arbitration, especially by rule of court, and if they conduct fairly, the award of a sum of money or other thing, is so considered as in auter droit, and judgment accordingly; for in such case the award is viewed only as ascertaining the demand for or against the deceased's estate; only as 152.-3 Mass. reducing to a certainty what was uncertain, and not as creating 3 Comb. 318. any new debt or demand for or against the estate of the deceased. An award made on a submission entered into by 347, Peisch v. mistake, is not binding, as where the parties thought they were 1 D. & E. 691, Barry v. Rush. 7 D. & E. 453. 2 Mass R. R. 235. -4 Cranch Ware. bound to submit. 3. Where the submission is by parol, the plt. must shew not only that the parties promised to be bound by the_award, but that their promises were concurrent. 12 Johns. R. 397, Keep v. Goodrich. CH. 13. Art. 4. 3 Cain. 258. 1 Dall. 164. -1 Cain. ART. 3. § 1. The effect of a good award is this: if any thing be awarded as a recompense for a wrong done, or for something submitted, and this recompense be paid or perform- 147.— ed; or if a thing be awarded to one for which he has a reme- 1 Day's Ca. in Er. 130, dy; or if there be something as amends for non-performance, 134. as where there is a bond or an assumpsit to perform the award; then the award operates as an extinguishment of the wrong or claim referred, and the prior cause of action passes in rem judicatam, so that if either party sue again for any matter in dispute, on which the award was made, this, when pleaded, will be a bar to the action; as an award to pay money at a day not yet come, for here is an action for the money awarded; and if the day be past, then it is a good plea to say he paid or tendered, and so he must say; but if the money awarded be not paid at the day, the party to receive has his election to have an action on the award, or to sue on the first cause of ,action; practice is to sue the award. 1 Saun. 28. 2 Saund. 61, 62, 127, 128. 3 D. & E. 512-Kyd 18.-1 Ch. on Malcolm v. 2. Again, "if there be a bare submission without bond or assumpsit, and the award be to do a thing, for which the party to whom it is to be done has no remedy, as if it be a collateral thing, as to make a feoffment, or the like, or any thing else, except the payment of money; in these cases the party will on Awards 8, not be barred," in a suit on the matter submitted; for he cannot Pl. 80-2 D. have an action for the non-performance of such an award; & E. 645, because ex nudâ submissione non oritur actio. This was the Fullerton.old law, but now the very act of submission implies a promise 4 Leon. 3k to perform the award; and an action lies on such a submission. And now an action may be maintained on an award of a collateral thing, made on a parol submission. Hence assumpsit lies against the party who revokes the submission, but not if the arbitrators unreasonably delay the award. A submission of all matters in difference between the parties in the suit is not confined to the action. 1 1 Salk 69.-Bac. Abr. Freeman v. Barnard.24. Raym 150, 151, 1 Ld. ART. 4. 1. How the award may be a bar, though not performed, when it gives a new duty in lieu of the former, for a submission implies a promise to perform, so that the party has a remedy for that which is awarded. But when the intent of the award is not to discharge the old duty itself, and give a new one, but barely to cause a discharge of the old du- 76-1 Sid. ty, not by the award itself, but by a release; the award is no 160.-K bar of the old duty; as the referees only awarded mutual re- Pasloe v. Baileases, they must have found nothing due to either party. If ley-6 Mod. the award be to perform a collateral act, as to make a release 221-2 Ld. 599, 600, Raym. 1039. CH. 13. Art. 4. 3 Wood's 600-Stiles 1 Sid. 160. 3 Wood's 1 Com. D. 524.-Cro. El. 223.- 1 Com. D. &c.; the old opinion was, that no action lay to compel a per $3. The award's operation to change the property. The Con. 44, 45.- award alters the property of chattels; as if the award be, that J. S. have a horse, in question between the parties, this gives him the horse, and he may have detinue for him; it operates as a grant, But as to a freehold, an award "neither gives a 524.-1 Bac. title nor binds a right," "because it cannot pass a freehold withAbr. 20, 21. 4 Co. 1, in out deed." And as to a term, or chattel real, the award must Vernon's case. be," that the party shall have the term." A freehold estate or interest may pass from one to another by judgment of court 244-2 Cro. and execution, but not by award; and no freehold or interest therein can be submitted, not even by deed; for it can be only to submit, and the award thereon can be no conveyance; and no collateral satisfaction can bar a real action. But if the submission be by bond, and the land awarded, and if the party refuse to convey, he forfeits the bond, and it may be sued. Nor can partition be made by an award. -1 Com. D. 524.-1 Rol. 447. 2 Wils. 148, Wells' case, A. D. 1762. § 4. Where a freehold is awarded, assumpsit lies only in one case, that is, when the submission is by writing signed, for if by deed, an action of a different kind lies on it, and if by parol, the statute of frauds applies. $5. The doctrine of construction, as to awards, has been essentially altered in a century and a half. Formerly the courts of law construed them with great strictness; but for more than a century past with great liberality; thinking that when parties end their controversies by the decisions of judges of their own choosing, these ought to be valid and effectual, if they can be by any fair and liberal construction; and further, that it is unreasonable to tie the common people down in their transactions, to the strict legal notions, critical and nice distinctions, of the bar and bench. 6. It seems to be a rule in the English courts in debt on an award, and nil debet pleaded, not to allow partiality in the arbitrators to be given in evidence; for the court said the plea of |