Scottish Court of Session Decisions

Subject_1 APPRENTICE.

Macleod of Cadboll
v.
William Sinclair, Saddler in Edinburgh

Date: 10 January 1738
Case No. No 4.

A present of one guinea had been given to the master's wife, half a year after the date of the indenture. Found that the forfeiture by the statute is double the sum so received, recoverable only in Exchequer; and that action could not proceed at the instance of the cautioner in the indenture, to have it declared null, and to obtain repetition of the apprentice-fee, the apprentice having deserted.

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Cadboll bound David Ross an apprentice to the said William Sinclair, paid L. 25 of apprentice-fee with him, and likewise became cautioner in the indenture; of which (upon Ross's deserting his master's service) Cadboll brought a reduction on the act octavo Annœ, entitled, “An act for laying certain duties on candle, &c.” specifying, That, over and above the apprentice-fee, the defender covenanted the additional sum of a guinea to be paid to his wife, which accordingly was paid some time thereafter, and which, not being inserted in the indentures, inferred a forfeiture of double the apprentice-fee, besides voiding the indentures; however, the pursuer did not insist on the penalty, but restricted his action to the nullity and repetition of the money paid.

For the defender, it was pleaded, That the penalty in the act, upon the receivers of any sums not contained in the indenture, is only a forfeiture of double of such sums received; the one half to the Crown, the other to the informer. 2do, The guinea does not fall within the statute, it being no part of the apprentice-fee, directly or indirectly, but was given as a compliment to his wife, half a year after the date of the indentures, for taking care of the young man, who was kept at bed and board in the family; and, if such gratuity is constructed to fall within the act, it would reduce the most part of the indentures in Scotland, this being the known custom with respect to all house-apprentices.

The Lords found, That the forfeiture, by the statute, is only double the sum received by the defender's wife, and that the same is recoverable only in the Court of Exchequer; and therefore repelled the reason of reduction founded thereon; but found the indentures could yield no action, and that there is no repetition of the sum in these indentures competent to the pursuer.

C. Home, No 80. p. 132.