Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Alexander Forbes
v.
Charles Dickson and his Father

Date: 2 July 1708

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By indentures betwixt Alexander Forbes, goldsmith in Edinburgh, and Charles Dickson, son to the provost of Forfar, in 1702, the said Charles becomes his apprentice for seven years, and is obliged to attend, and for every day's absence to serve two; and, for every penny he skaiths his master, to repay two pennies, under the penalty of £40 Scots, over and above performance. In 1704, the boy being corrupted with bad company, he begins to dispose on some of his master's bullion, and to pawn it, and then totally deserts his service. Whereupon Forbes charges the apprentice's father for the desertion, and damage incurred thereby; being forced to employ journeymen to do his work, to his great expense.

The father and son suspend; and allege,—It was the master's fault, in cruelly beating him, that he ran away. And, a conjunct probation being allowed, the same came this day to be advised; and it appeared, that he had disposed on some solder and meltings in the bottom of the pot, and on some stamps, and a pair of buckles, and some other things of no great value; and that he had left his service in the third year of his apprenticeship; and the hiring of journeymen would cost about ten or twelve shillings a-week; and no maltreatment was proven against the master, but that he had given him a box on the ear when he sticked his work, or staid out late.

Against this probation, it was objected, for the apprentice and his father,—That the damage could extend no farther than the particulars proven embezzled, which were but small; and it was not proven they were the master's; and what hindered but they might be the apprentice's own? And, though he ought not to carry on a covered trade, to his master's prejudice, yet nobody would call that theft. And the master was the occasion of his being debauched, by keeping another profligate rake in the house, who seduced him; and the father, being only cautioner, cannot be liable till the son be first discussed. And he was at small loss by his running away, for it made room for his taking home another apprentice; so he had no need to hire journeymen.

Answered,—That, in these clandestine domestic thefts, it was impossible for him to prove every particular he had abstracted. But the Lords' practice was, where some were pointed at and condescended upon in the probation, to give the master his oath in litem for the rest of the kinds and species he wanted, in supplement of the probation; as was found, 7th November 1684, Foster against his Apprentice, observed by President Newton. And his getting a new apprentice did not make up his loss; for they are incapable to do any effectual service for the first year or two. And the father was bound as surety and full debtor; neither had the son any estate to discuss.

Some of the Lords were for the master's giving in a more special condescendence of the damage. But, at last, they agreed to modify a sum in gross for the whole, and decerned for £500 Scots in all, including the £40 of penalty in the indentures.

Vol. II. Page 447.