Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

James Symontoun
v.
Thomas and John Brocks

Date: 14 January 1673

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James Symontoun pursues Thomas Brock his apprentice, and John Brock his cautioner upon the indenture, for payment of a merk for each day's absence out of his service. It was alleged for the defender, 1mo. That the apprentice's absence was not in his default, but that he necessarily withdrew, because his master had neither work as a goldsmith, nor did he give the apprentice entertainment, and that he caused the apprentice oversee masons for twenty weeks together. 2do. Neither he nor his cautioner can be liable for a merk per diem, or any other damage, for his absence; because, by the indenture, the damage by absence is liquidated to two day's service for one; which the apprentice offered, by instrument, to perform. The pursuer answered, That he offered him to prove, that he had both work, and gave sufficient entertainment to his apprentice; and, for his attendance on the masons, it was to a public work belonging to the calling, which every master was appointed to oversee week about. And, for the damage of absence, it is in favour of the master; and he may choose whether to make use of it, or of the true damage. The Lords preferred the master's probation of the sufficiency of his entertainment: but found that he ought not to have employed the apprentice in any other work than his calling; and allowed the time that he was employed to oversee the masons to compense as many of his absent days; and found, that the damage by absence being liquidated by the indenture [to] two days' service for one, that he could pursue for nothing else; and that the offer to make out the service was sufficient, the apprentice now performing the same.

Vol. II, Page 150.