Baxter v New South Wales Clickers' Association [1909] HCA 90

Baxter v New South Wales Clickers' Association [1909] HCA 90 - HCA 1909 case summary — Zoe

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coming on for hearing before the Judge of the Industrial Court it was not disputed that the appellant was one of the persons to whom the Common Rule applied, or that he had paid the amounts alleged to have been paid to the employés in question, and it was proved that those persons were apprenticed to the appellant under indentures dated before the making of the award, and purporting to be made under the Apprentices Act 1901, and that the indentures had been bond fide entered into on the dates appearing therein, in the ordinary course of business. In view of these facts objection was taken on behalf of the appellant (1) that the relation of employer and employé did not exist in the case of apprentices duly apprenticed under the Apprentices Act 1901; (2) that, the indentures having been entered into in accordance with the Apprentices Act 1901 before the award or Common Rule, neither the Court of Arbitration nor the Industrial Court had jurisdiction to alter or vary their terms ; and (3) that neither the award nor Common Rule had any opera-~ tion as regards apprentices whose indentures had been entered into before the making of the award or Common Rule, and, there- fore, the Court had no jurisdiction to determine the complaint. The learned Judge of the Industrial Court overruled the objec- tions and found the charges proved, ordering the appellant to pay the difference between the wages actually paid and the minimum wage prescribed by the award, in addition to a penalty and costs. The appellant moved the Supreme Court for a rule nisi for a writ of prohibition restraining the respondents from further proceeding upon the order of the Industrial Court. A rule nisi was granted, but on motion for the rule to be made absolute was discharged by the Supreme Court (Simpson Acting CJ., Cohen J.,and Pring J.) by majority (Cohen J. dissenting) (1). From that decision the present appeal was brought by special leave, with leave to move for a writ of certiorari if the Court 'should be of opinion that that was the proper remedy.

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determine the case, was derived from the Sth section of the Industrial Disputes Act, which deals with "any matter pending" in proceedings instituted previously to the expiration of the Arbitration Act, in the Arbitration Court, to recover penalties for breach of an award or of an industrial agreement. It enacts that "such proceedings may be continued and such matters shall be heard and determined by the Industrial Court," and contains other provisions to be quoted presently. The appellant had paid his apprentices at the rates fixed by their indentures, and these were less than the minimum wage fixed by the Common Rule. The indentures were made in 1903, five years before the award. The appellant maintains that they were made in conformity with the provisions of the Apprentices Act (No. 41 of 1901); that whether they so conformed or not, the Arbitration Court had no power to rectify or vary them, or to alter the contracts embodied in them so long as the indentures subsisted; that as soon as the facts of the relationship established by them appeared, whether on the face of the proceedings or in evidence, the Arbi- tration Court was without jurisdiction in that behalf; and that quacungue via the proceedings and the conviction were in excess of jurisdiction. The award of the Arbitration Court was, he urged, ultra vires so far as it purported to affect the relation- ship of master and apprentice, and the Common Rule founded upon it fell with it to the same extent. He contended that the Industrial Court was exercising merely the jurisdiction of the Arbitration Court, and that any excess of that jurisdiction could be restrained by prohibition. On the other hand, the respondents contested all these positions, and contended, above the heads of all of them, that, even if the Industrial Court had exceeded the jurisdiction specifically conferred on it by the Act of 1908, the Supreme Court was debarred by that Act from granting either in this or in any other case a prohibition to confine the jurisdiction within the limits assigned by the Statute. This proposition naturally divides into two: the first is that prohibition will not lie where the proceedings have been begun under the Arbitration Act and have been carried on under the Industrial Disputes Act; the second is that it will in no case lie if the pro-

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which rebuts this inference and removes or impairs the control, - Such an intention must either be expressed or be very clearly deducible. Jessel M.R. said, in the case cited to us of Jacobs v, Brett (1), that nothing was better settled than that an Act of Par- liament which takes away the jurisdiction of a superior Court of Law must be expressed in clear terms. " It is not to be assumed," he says, "that the legislature intends to destroy the jurisdiction of a superior Court. You must find the intention not merely implied, but necessarily implied." His Lordship goes on to state another principle, which is that the general rights of the subject are not hastily to be assumed to be interfered with or taken away by Acts of Parliament. Among these he instances "a right, and it is a valuable right, of having the question of the jurisdiction of a local Court" (the Court in question in that case) "determined in - the superior Court." Now when this controversy was begun under the Industrial Arbitration Act the parties had clearly a right to invoke the intervention of the Supreme Court to correct any excess of jurisdiction on the part of the Arbitration Court, and to confine that Court within the limits assigned to it by the Act of 1901. That right continues to exist as to the Court to which the functions of the Arbitration Court were allotted on its dissolu- tion, unless on the construction of sec. 52 we are to conclude that the legislature has taken the certainly unusual course of inter- vening in the very course of existing litigation to extend the limits of the jurisdiction, or, leaving it within its former limits, to render a party to it, under the oppression of a judgment trans- gressing the powers of the Court, impotent to invoke the assist- ance of the proper tribunal to keep the Court within the field which the law has assigned to its operations. It would take unmistakeable expressions to justify us in imputing to the legis- lature the intention so to invade the arena of pending litigation. -

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necessary to answer, and which, as already intimated, I do not propose to answer decisively. But as it was included in the broadest of the respondents' propositions it is as well that it should receive something more than a passing reference. The appellant's counsel contend that sec. 52 leaves intact the power of the Supreme Court to issue a prohibition for excess of juris- diction ; that, in effect, matters remain in this regard as they were under see. 32 of the old Act. For the respondents it is pointed out that the additional terms found in sec. 52 cannot be regarded as meaningless, or treated as nugatory. The Statute was enacted after the judgment of this Court in Clancy's Case (1), and it is urged that the change in phraseology may reasonably be attributed to an intention to impose further restrictions on the common law power of superior Courts. Assuming this inference to be legiti- mate and correct, as I think it is, it does not follow that the con- tention for the respondents is justified to its full extent. For their argument goes to the length of asserting a practically uncontrolled _ jurisdiction in the Industrial Court. Mr. Beeby, when pressed, admitted that he could not suggest any line as drawn by the section short of that point. Yet such a line must surely exist. It would be strange if the legislature, after defining the powers of the Industrial Court in precise terms, extending over many sections, had given it licence to exceed those powers. If this is really what the section means, then the Industrial Court cannot be recalled to its lawful province, no matter what question, civil or criminal, it may have arrogated to itself the right to decide. The last person who would make such a claim is the learned Judge of that Court. The legislature has of course power to make an inferior Court the scle custodian of the extent of its own jurisdiction. But it is our duty not lightly to impute to it so extraordinary an intention, just as it is for us to carry its words into effect if they plainly and unmistakeably convey it. The true construction must be sought between the extreme limits of the opposing contentions, but I confess the difficulty' of arriving at a satisfactory conclusion. If by using the form of a decision the Industrial Court purported to deal with a matter entirely foreign to the purposes of the Act, there might be ground for the Q) 1C.LR., 181.

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O'Connor J. An award was made by the Industrial Arbitra~ tion Court in settlement of an industrial dispute in the boot manufacturing industry, and its terms were afterwards, with certain modifications which are immaterial in this case, made a Common Rule of the industry throughout the State. In fixing the minimum wages for different classes of employés the award specifically directed that apprentices should be paid a certain weekly wage in accordance with a scale set forth. The appellant was a boot manufacturer, and it was not denied that the Common Rule brought his business within the general seope of the award. In his employ were several apprentices bound to him under indentures of apprenticeship purporting to have been entered into in accordance with the Apprentices Act 1901. Amongst them was Thomas Francis Taylor. His indentures were made in 1903, and the parties were himself, his mother, Margaret Taylor, and his master, Henry Baxter, the appellant. The deed imposed on the master the usual obligation of instructing the apprentice, and the wages to be paid were on a scale ascending as the years of apprenticeship went on, but the highest rate payable was consider- ably less than the minimum rates directed by the award to be paid to apprentices doing the work at which the apprentice Taylor was engaged when proceedings in this case were initiated. After the Common Rule came into force the appellant continued to pay at the rate payable under the indentures, refusing to increase it to that fixed by the award, upon which the New South Wales Clickers' Association, which was the union directly interested in the observance of the terms of the award, proceeded against him before the Industrial Arbitration Court for breach of the Common Rule. These proceedings were pending when the Industrial Arbitration Act 1901 came to an end by effluxion of time. On the day following the Jndustrial Disputes Act 1908 came into force, and amongst its provisions was one which empowered the Industrial Court to continue, hear and determine proceedings so pending. The proceedings were accordingly brought before the Industrial Court and there continued, and the Court after

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hearing adjudged the appellant guilty of a breach of the Com- mon Rule and condemned him to pay a penalty and costs. In respect of that adjudication the appellant applied to the Supreme Court for a prohibition which was refused. Against that refusal he has appealed to this Court, which has now to determine whether under these circumstances the Supreme Court was right in declin- ing to issue its writ of prohibition against the Industrial Court. The appellant challenges the validity of the order of the Industrial Court on the ground that in respect to his apprentice, the Common Rule which he was charged with disobeying did not bind him. He contended that his obligations to the apprentice were under the indenture, and not under the Common Rule; that in so far as the former and the latter are inconsistent the former must prevail, and that the Industrial Arbitration Court had no jurisdiction to make an award impairing rights conferred upon the master by indenture under the Apprentices Act 1901 at whatever date the indenture was entered into; and that the objection was particu- larly applicable when the indenture had been entered into before the date of the award. The respondents joined issue on these contentions; but they defended their position also on another ground, namely, that whether the order of the Industrial Court was within its jurisdiction or not, the appellant was prevented by the express provision of sec. 52 of the Industrial Disputes Act 1908 from questioning in this or any other form the validity of the decision. The latter ground raises a question of very general importance. In dealing with it I shall for the present refrain from inquiring whether on the true construction of sec. 8 the appellant's right to impeach the decision can be in any way affected by sec. 52. I shall assume that that section does apply, and that the fate of the appellant's application for a prohibition depends upon how much of his common law right of invoking the aid of the superior Courts to restrain excess of jurisdiction in an inferior Court has been left to him by sec. 52 when properly interpreted. Taking the words in their widest meaning they are, no doubt, capable of being construed so as to prevent the challenging of any decision of the Industrial Court on any ground whatever. Such a construction would, in effect, throw down all limits, and would constitute the Court itself the final arbiter

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of its own jurisdiction. It is, of course, open to the legisla- ture to invest a tribunal with unlimited power, and should the enactment constituting it clearly express that intention, it would be the duty of this Court to give full effect to it. But where the words are not clear and express it becomes the duty of the Court to examine the whole enactment, its scope and purpose, in order to ascertain the object which the legislature intended toe In such circumstances the Court must also take into consideration the two principles adverted to by Sir George Jessel, Master of the Rolls, in Jacobs v. Brett (1), namely, that every subject has at common law the right to call upon a superior Court to determine whether an inferior Court of limited powers has exceeded its jurisdiction, and that a Statute will not be con- strued as depriving the subject of that right unless its language is reasonably capable of no other interpretation. In Clancy's Case (2) this Court held that sec. 32 of the Arbitration Act 1901, which is generally similar, but by no means identical, in its terms with sec. 52 now under consideration, did not deprive the superior Court of the jurisdiction to review proceedings of the Industrial Arbitration Court in cases where that tribunal had exceeded its jurisdiction. It was urged by the appellant's counsel that that decision substantially covered the present case. I cannot assent to that position. Sec. 52, as to the body of it, is no doubt merely a repetition of sec. 32 of the earlier Act. But at the beginning the following words have been added - * any decision of the Industrial Court shall be final,' and at the end these words - "and the validity of any decision shall not be challenged by prohibition or otherwise." These expressions were no doubt added in order to emphasize the intention of the legislature to free the determinations of the industrial tribunal from the control of the superior Courts, and they were added, it must be remem- bered, after the judgments of this Court in Clancy's Case (2) had interpreted sec. 32 of the earlier Act as not depriving the superior Courts of their right of review in cases where the industrial tribunal had exceeded its jurisdiction. Under these circumstances sec, 52 of the Act of 1908 cannot, it seems to me, be interpreted as if the additional words meant nothing. Some effect must be

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given to them, and it must, I think, be taken that at the very least the legislature intended the decisions of the Industrial Court to be more independent of supervision by the superior Courts than those of the tribunal constituted by the earlier Act had been. The difficulty is to determine whether the words by which that larger measure of independence has been conferred are to be interpreted as freeing the Industrial Court absolutely from con- trol or supervision by the superior Courts, or as freeing it from such control and supervision conditionally only, that is to say, for so long only as it keeps within certain limits of jurisdiction. The broad features of the Industrial Disputes Act 1908 stand out very clearly. Its subject matter is the relations of employer and employé in industrial matters. For the purposes of adjusting those relations Industrial Boards are constituted and invested with extensive powers. Over them is the Industrial Court having large appellate and some important original jurisdiction. The Statute as a whole must be taken to impose a definite limit on the powers of Boards and Court. Their jurisdiction cannot from its nature and origin extend beyond the subject matter of the enactment which has created them. In that way, therefore, the outside boundary of the jurisdiction is upon the face of the Act fixed with sufficient certainty. But that does not by any means solve the difficulty. The question has still to be decided whether the Court can without question by any other tribunal determine finally that a matter submitted for decision does or does not involve an issue outside the subject matter of the enactment. In this connection it will be useful to contrast the constitution and status of the present Industrial Court with that of the Industrial Arbitration Court created by the earlier Act. The new tribunal consists of a Judge of the Supreme Court or of the District Court instead of a Board of three of whom two were laymen. It is a Court of appeal from the Boards, and is expressly empowered to determine questions of jurisdiction. Its constitution and powers indicate that the legislature intended to clothe it with important duties in respect to keeping the operations of the Boards within the ambit of its provisions. Apart from sec. 52 the Industrial Court would stand in the same position as any other Court of limited powers. Its jurisdiction is founded upon and can be

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tion upon the Industrial Court to determine finally and without possibility of review by any other tribunal every question, whether of law or of fact, necessary for its decision, so long as its proceedings show on the face of them that the subject matter of adjudication had to do with the relation of employer and employé in industrial matters within the meaning of the Act. In any case, therefore, in which it appears on the face of the pro- ceedings that that was the subject matter involved, the decision of the Industrial Court with reference to that subject matter, whether right or wrong, in fact or in law, cannot be called in question by a superior Court. It would follow that, if see. 52 of the new Act could be applied to the proceedings in the present case, the appellant's application to the Supreme Court was rightly rejected. The jurisdiction of the Industrial Court was apparent on the face of the proceedings. The relation of employer and employé existed in fact between the appellant and his apprentice. The award and the Common Rule obviously dealt with industrial matters within the meaning of the Act. The interpretation of the award, of the Common Rule, of the indentures of apprentice- ship, of the Apprentices Act, and the determination of the extent to which, if at all, existing rights under that Act were affected by the Zndustrial Act 1901 all relate to the subject matter over which the Court had jurisdiction. In accordance, therefore, with the interpretation which I have placed on sec. 52, the erroneous determination of the Industrial Court in respect of any or all of these matters could not be questioned in any other tribunal. If, therefore, the proceedings against the appellant had been instituted for the first time in the Industrial Court, the Supreme Court would have been right in holding that the decision of the Arbitration Court must be taken to be final and conclusive whatever may have been their opinion as.to the appellant's grounds of objection. But the proceedings were not instituted for the first time in the new Court, but in the old In- dustrial Arbitration Court under the old Act, and effect must be given to the provisions of sec. 8 of the new Act. In the view which I take of that section, the appellant's common law right of invoking the aid of the Superior Court is cut down, not by sec. 52 of the new Act, but by sec. 32 of the old Act. It is by virtue

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of sec. 8 that proceedings initiated in the old tribunal are con- tinued and carried on to completion in the new. Existing rights of litigants are however preserved by the following words: "For the purpose of carrying out the above provisions, the enactments of the first mentioned Act shall continue in force, and shall, muta- tis mutandis, apply to the hearing and determination of any such matter by the Industrial Court, and to the enforcement of any order or determination of such Court." That provision is obviously intended to keep on foot the rights of the parties as they existed at the time when the proceedings were initiated before the old tribunal. The Colonial Sugar Refining Co. v. Irving (1) is a clear authority that the taking away of the right of appeal would be an interference with an existing right and not merely an alteration of procedure. That principle must apply equally to the right of recourse to a superior Court for the purpose of keeping a tribunal of limited powers within its jurisdiction. The language of see. 8 is wide enough in my opinion to include that right, but even if the words used were ambiguous, it would be contrary to the well recognized principles of statutory construe- tion to interpret them as depriving a litigant of rights which would have been his if the litigation had continued in the old Court. In my opinion sec. 8 of the new Act must be read as keeping in force sec. 32 of the old Act for the purposes of litigation initiated in the old and continued in the new Court. The only restriction therefore which has been placed on the appellant's common law right of seeking the aid of a superior Court to keep a Court of limited juris- diction within its powers is that which is embodied in that section. That being so, the law as laid down in Clancy's Case (2) must prevail, and if the Industrial Court has applied the award to a state of facts outside its jurisdiction the appellant was entitled to a prohibition at the hands of the Supreme Court. The rights of the parties to the appeal must therefore depend upon whether the Industrial Court, in adjudging the appellant guilty of a punishable breach of the Common Rule, under the circumstances of this case exceeded its jurisdiction. The Common Rule can have no greater force than the original award, and the (1) (1905) A.C., 369. (2) 1C.L.R., 181,

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Industrial Court has no power to so interpret the latter as to make its provisions applicable to cireumstances which the Indus- trial Arbitration Court would not have had jurisdiction to deal with. The award fixes certain rates for apprentices generally. The Industrial Court has held that those rates are binding on the appellant, notwithstanding that they are at variance with the rates fixed by the indentures of apprenticeship. If, as the appel- lant contends, the Industrial Arbitration Court had no power to impose on master or apprentice obligations inconsistent with those embodied in the indenture, the Industrial Court had, it is clear, no jurisdiction to adjudge the appellant guilty. In deter- mining what was the power of the Industrial Arbitration Court in this respect it will be necessary to consider first the nature and extent of the jurisdiction cf that Court to deal with the relations of employer and employé in all industrial matters, and then the terms of the particular indenture of apprenticeship now under consideration. The object of apprenticeship is to secure to the apprentice proper instruction in a trade, and the indenture aims at creating the relation of employer and employé between master and apprentice on such terms and conditions as_ will best attain that object. The adding of parent or guardian as a party is to secure effective attainment of that object ; the agreement is in its essence merely between employer and employé. The Industrial Arbitration Act 1901 empowers the Court created under its provisions to determine disputes between employers and unions of employés with reference to industrial matters. The master is none the less an employer and and the apprentice is none the less an employé because the relation is created by an indenture of apprenticeship ; and I see no reason to doubt that the words of the Statute taken in their ordinary meaning are large enough to include the relation of employer and employé when so created. Indeed it would be difficult to conceive of an industrial dispute in the skilled trades which would not necessitate for its effective settlement some deal- ing with apprentices, whether by way of readjusting the relations between employer and apprentice or by way of regulating the pro- portion of apprentices to journeymen in a particular business and the class of work on which apprentices are to be employed. The

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was entered into before or after the initiation of the dispute settled by the award. Since the judgment of this Court in the Federated Saw Mills Case (1) it can I think hardly be questioned that the Industrial Arbitration Court could in its award impose conditions on employers and employés inconsistent with contracts of employment subsisting between them at the time when the dis- pute arose. On that question I have expressed iy opinion in that case as follows (2): - "Industrial Arbitration may inyolve the abrogation of the existing contractual rights of either of the parties where the abrogation is necessary for the effective settle- ment of the industrial dispute. That proposition was questioned in the course of the argument. But it is to my mind one of the fundamental conditions on which the jurisdiction of Industrial Courts is exercised." In the case of contracts of employment be- tween master and adult workmen such an interpretation of the Act must necessarily be adopted if the remedial powers of the Court are to be effectually exercised. For the same reason the Court must be taken to have the same power where it becomes necessary in the settlement of a dispute to make an award incon- sistent with an indenture of apprenticeship which was in existence before the dispute arose. But against the interpretation whichI - have indicated, and which would appear to follow naturally from the application of the plain words of the Act to its subject matter, reasons have been urged for construing its general expressions with a restricted meaning so as to exclude from its operation the relation of employer and employé when it is constituted by in- denture of apprenticeship. The argument is put in this way - The indenture no doubt creates the relation of employer and employé, but it does much more. It confers on the infant employé the status of apprentice with the rights and obligations which the law attaches thereto. It is a provision for enabling (1) 8C.L.R., 465. (2) SC.L.R., 465, at p. 510.

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him to learn a trade and thus gradually relieve his parent or guardian from the obligation of maintaining him. The terms of the indenture concern therefore not only the master and the apprentice, but also the parent or guardian, whose interest in the faithful observance of the covenants is substantial and not merely formal. Upon that state of things the argument is founded that the legislature could not have intended, by general words in an Act concerning disputes in industrial matters between employers and employés generally, to empower the Industrial Arbitration Court to disregard or infringe the rights of parent or guardian under the indenture and to render of no effect the system established by Statute for the instruction of apprentices. There are under the law of New South Wales two classes of apprenticeship the distinction between which it is important to bear in mind in dealing with the appellant's contention, - apprenticeships under the Appren- tices Act 1901 and apprenticeships not under the Act. The Act constitutes a system of apprenticeship under which provision is made for teaching trades to poor children whose care and main- tenance the State has in various ways taken upon itself; under which, also, the relations of master and apprentice generally are dealt with and summary remedies are created for the adjustment of their differences. Indentures coming within the Act confer statutory rights on all the parties to them, not on the master and apprentice only. The securing to the parties the exercise of those rights is part of a system instituted by the State for ensuring efficient instruction in skilled trades to its young people, and for making that instruction one of the means by which the poor and destitute children, whose care the State has taken upon itself, are trained to be good citizens. No doubt Parliament could, if it thought fit, confer on the Industrial Arbitration Court power to _ disregard that system and the conditions of indentures entered into in accordance therewith, and to treat the duties and obliga- tions thereby undertaken by the parties as of no moment when- ever the Court deemed such a course expedient for the settlement of an industrial dispute. I am disposed to think, if it were neces- sary in this case to decide the matter, that there are very strong reasons for doubting whether the legislature intended by the

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old Act. It does not renew the old Act itself (see per Ridley J.in Wakefield Light Railways Co. v. Wakefield Corporation (1)), but in effect incorporates or adopts those provisions into the new Act as a statement of jurisdictional powers of the Industrial Court, which comes into being, and receives all its authority from the Act of 1998 alone. And it is only such of the former enactments as relate to (a) the hearing and determination by the Industrial Court and (b) the enforcement of the order or determination of the Industrial Court, that are pro hac vice to continue. Pring J. very properly said that the right to obtain a writ of prohibition to the Court of Arbitration was not conferred by the enactments in the Act of 1901. On the contrary, said the learned Judge, the writ lay in the absence of any enactment depriving the litigant of his ordinary common law rights. I quite agree with those obser- vations. They go to the heart of the matter. The adoption of the old provisions was for the special purpose of delimiting the powers of the Industrial Court itself, and not for the purpose of affirming or affecting the powers of the Supreme Court should the Industrial Court be alleged to have transcended its powers. The enactments as to the hearing, determination and enforcement are all, so to speak, within the walls of the Industrial Court itself, and are not appropriate to indicate the action of any other Court. Whatever order the old Arbitration Court could have made, the Industrial Court was empowered to make ; in whatsoever manner that order could be enforced, so the order of the Industrial Court could be enforced. That begins and ends the provision of sec. 8. The orders the old Court, and therefore the new, could make are provided for in sec. 26 of the old Act, and includes sub-see. (71) :- - "Po deal with all offences, and enforce all orders under this Act." 'The powers of enforcement are set out in sec. 37, and include juris- diction to hear and determine a proceeding for fines and penalties. (1) (1906) 2 K.B., 143.

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executed by the apprentice of the first part; by the parent, or such person (that is the principal), the guardian, or justices of the second part; and the master of the third part, and which specifies certain matters, and which "shall be in the form or nearly as may be set out in the Second Schedule " shall be as bind- ing on the master and the apprentice as if the apprentice were of full age. There are certain limitations on the terms which may be inserted - as by see. 4 which forbids the binding an apprentice under fourteen or for more than seven years, and by sec. 16, which forbids the binding an apprentice for more than forty-eight hours a week with the exception of specified industries. But there is not a word in the Act about the third party being bound, or about there being any remedy for or against him. His office is merely to consent, and this consent makes up for the infancy of the apprentice; the capacity of the designated person to judge of the infant's welfare is taken as equivalent to that of the latter at full age, and so the contract once entered into in that way is presumed to be for his benefit, and he and the master are bound as if the infant were twenty- one. But that is all. And when the Schedule is looked at, this is plain to demonstration. The apprentice is named as of the first part; the third party is named as of "the second part (as consenting hereto)." The agreements are all expressed as between the apprentice and the master. Each of these agrees to certain things and binds himself to the other " his executors and adminis- trators"; and finally two spaces are left - manifestly for the apprentice and the master - for due observance of these agree- ments, As some discussion arose as to this last clause, I may usefully point out that there are several reasons why those two spaces cannot include the third party and must refer to the master and apprentice. The third party, as already mentioned, is merely a consenting party; the master and apprentice have already agreed for themselves, their executors and administrators ; the third party has not previously agreed to perform any cove- nant and agreement, and therefore the last clause would be sense- Jess as to him; and, lastly, to bind executors and administrators of the Principal of an orphan asylum, or of two justices, would be even more absurd than binding those officials themselves. This

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Judgment (294 paragraphs)

H.C. o A. 1909.