Sixthly, Of settlement by apprenticeship. me, available. In Rex v. Cromford, the apprentice had served out his time; and in Rex v. Ripon, the indenture was executed by the father of the apprentice and the master, with her consent, and she also served under it. Yet in both those cases the indentures were held to be invalid. According 3. The parties to to my recollection the distinction is this: where a party takes the benefit of the binding. a deed, but does not execute it, he will not be liable under it, as for a covenant broken, but he may be liable under the implied contract raised by the acts of benefit which he takes under it. Here the infant was not bound by indenture, and no settlement was gained.-Best, J. It is said, that the service here was tantamount to an execution: but where is that argument to stop? It might go the length of proving that a service for a single day, and that perhaps without proof of his knowledge of the contents of the indenture, would bind the apprentice. The dictum to which we have been referred applies only to land qui sentit commodum sentire debet et onus, et transit terra cum onere; and even there it would be a difficult point to establish, that where a person took possession of the land for a single day, he was bound by all the covenants of a long lease which he had never executed. It seems impossible to consider this as the case of a person bound by indenture and unless that he be so, he is not within the statute, and has gained no settlement. : The case of Rex v. St. Nicholas, Nottingham, 2 T. R. 726; has been thought to be at variance with the doctrine laid down in the above case; but there is this distinction in the circumstances of them, which may reconcile their apparent contradiction. In Rex v. Arnesby, the binding was voluntary, but the indenture was not executed by the apprentice, and therefore invalid: whereas, in Rex v. Nottingham, the binding was by the parish, and the execution by the apprentice was not necessary to make the binding valid. The principal objections, however, were, that the master resided in another county from that in which the justices resided who allowed the indenture, and from which the pauper was bound. It was admitted that the master could not have been compelled, under the 8 & 9 W. III. c. 30, s. 5, to receive the pauper, but he had executed the indenture (a) and received the apprentice, and consequently the objection with respect to him, it was held, could not be supported; and with regard to the other objection, it was observed, that, by the 43 Eliz., the parish officers are to bind out the children "where the justices shall see convenient," and whether in or out of the parish is not specified. The judgment of Lord Kenyon, therefore, must be taken as applicable to the particular facts of the case, and not as laying down any general principles as applicable alike to all questions of apprenticeship. His Lordship said, If the master does not reject the binding, but assent to it, there is a concurrence of all parties to give validity to the binding, and if no objection be made to the binding before the apprentice has resided forty days, he thereby gains a settlement. Ashurst, J. At all events, there can be no doubt that the parish officers may make such a binding as this, by consent of all parties. Here the master consented by receiving the pauper. The pauper did not object, but lived under the indenture five months. That implies his consent, and it was only on ill-treatment that he applied for his discharge; now, that application is an acknowledgment on his part that the indenture is binding. The pauper having, then, served more than forty days, ought to have the benefit of it.-Grose, J. I consider all the parties consented to the binding. The case of St. Margaret's, Lincoln, Burr. S. C. 728; was considered as an express authority. (b) (a) In a note to Rex v. Arnesby, 3 B. & A. 588, it is said, the master did not execute the indenture, and it is so copied into 4 Burn, 498, 25th edit.; by reference to the report, however, this will be found incorrect. (b) Mr. Nolan treats this case as an authority, for he says, speaking of an apprentice put out by the parish, "his Sixthly, Of 4. The execution of the instrument. 4. The Execution of the Instrument. (a) It will be observed by the cases under the last head, that although, genesettlement by rally speaking, the parties to the deed become so by executing it, yet there apprenticeship. are some instances in which this ceremony is not essential to the validity of the instrument. In 1 Nol. P. L. 499, it is said, "although the master and apprentice must be parties to the deed, yet the settlement is not prevented by the master's neglect to execute, provided the apprentice is bound, and the law is the same whether it be a parish or a voluntary apprentice;" and several of the preceding cases are cited; to which may be added Rex v. Ribchester, 2 M. & S. 135; and Rex v. St. Peter's on the Hill, 2 Bott, 495. The pauper was bound an apprentice in St. Peter's in Chester, for seven years, to a carpenter, but the indenture was not executed by the master.-Lee, C. J. It is objected that this indenture is not good, because it is not executed by the master, but that makes no difference if the apprentice himself were bound. 5. Of the term of years. Binding for a less term than seven years does not render an indenture void, but voidable only. See remarks on this statute in Rex v. Louth, post, 470, 1. A binding of a Rex v. Fleet, Cald. 31. The indenture was properly executed by the parish officers, and allowed by two justices, but neither that nor the counterpart were executed by the master. It was contended that as the 8 & 9 W. III. c. 30, s. 5, requires the master to execute a counterpart, a settlement could not be gained unless the master executed. But Lord Mansfield, C. J., said, There is no doubt. The binding was authorised by the 43 Eliz., long before the act requiring a counterpart. But, though the binding was valid, it was doubtful, till that act was made, whether the persons to whom they were bound were compellable to receive them. That statute was therefore made, and it subjects the master, upon his refusal to receive the apprentice, to a penalty; but in no other respect confirms the power of binding, which was already fully established. Rev v. Lutterworth, 3 B. § C. 487. Where a parish has united with others for the support of the poor, according to the provisions of 22 Geo. III. c. 83, and a guardian has been appointed, the churchwardens and overseers may, nevertheless, bind poor children apprentices, and it is not necessary that the guardian should sign the indentures. 5. Of the Term of Years. (a) Although the 5 Eliz. c. 4, declared apprenticeships for less than seven years void, yet before the repealing act, 54 Geo. III. c. 96, it was held that such contract is voidable only, and not void; and that, therefore, a service under an indenture for a less term than seven years, entitles the apprentice to a settlement. St. Nicholas v. St. Peter's, Ipswich, 2 Stra. 1066; Burr. S. C. 91; 2 Bott, 493. There was an indenture of apprenticeship for four years; which the apprentice served accordingly. It was urged that this could not gain a settlement; for the 5 Eliz. enacts, that all indentures otherwise than by that statute shall be clearly void in the law to all intents and purposes; and by the same statute, persons dwelling in cities and towns corporate shall take apprentices for seven years at the least; whereas this master, dwelling in a town corporate, had taken this apprentice only for four years. -By Lord Hardwicke, C. J., and the Court. The indenture is not void, but only voidable at the election of the parties themselves, if they think fit to take advantage of it: and not by a third person. It can only be avoided by the master or servant, who were the parties to it; but not by the parish, who have had the benefit of the service of this apprentice. See also the observations in Gray v. Cookson, 16 East, 13. Rex v. St. Petrox, Burr. S. C. 248; 2 Bott, 496. The pauper was parish female till bound a parish apprentice in St. Petrox, until her age of twenty-one, without the alternative, or till time of marriage, as the statute, 43 Eliz. c. 2, s. 5, (ante, 424,) requires. It was urged that she gained no settlement, the bind twenty-one, does not render the binding void. (a) See division of the subject, ante, 423, and Vol. I. tit. Apprentices. ing being contrary to the statute, and therefore void. But by the Court: St. Nicholas v. St. Peter's is in point. The indenture is not void, but only voidable by the parties themselves, if they shall think fit to take advantage thereof; but it is neither void nor voidable by the parish as to gaining a settlement. Rex v. Evered, Cald. 26; 1 Bott, 638. S. C. cited per Lord Ellenborough, C. J., Gray v. Cookson, 16 East, 27. In this case it appeared that the apprentice had been bound, when an infant, for six years, by indenture; and that afterwards when of age he had run away; and it was held that such a binding was not void, but merely voidable. The same point was determined in the case of a parish apprentice, in Rex v. Chalbury, 1 Bott, 706. Rex v. Woolstanton, 1 Bott, 707. An unlimited binding of a parish apprentice was not void, but only voidable. And that the statute for putting out parish boys apprentice, as to that part which speaks of binding them till the age of twenty-four, is only directory; but that if it were compulsory, the indenture would be, for want of this, only voidable. We have seen that apprentices to chimney-sweepers should not be bound longer than sixteen years of age, (ante, 431.) 6. Of the Premium and Duty thereon, and Statement thereof in the Indenture. (a) Sixthly, Of settlement by apprenticeship. 5. Of the term of years. So a binding for six years is mere. ly voidable. Binding for an unlimited time only voidable. The statute 8 Anne, c. 9, s. 32 to 45 (ante, 425 to 429), and the 9 Anne, 6. Of the prec. 21 (ante, 425,6), first imposed a duty on any premium, whether pecuniary mium, &c. or otherwise, given with any apprentice, and which at present is regulated in amount by the 55 Geo. III. c. 184 (ante, 445). The 35 & 39 sects. of 8 Anne, c. 9 (ante, 426) declared void all indentures of apprenticeship, unless the full premium were truly inserted in the deed, and unless the deed were brought to the stamp office within certain times and duly stamped (ante, 427), but contain exemptions in favour of certain parish apprentices; and the 18 Geo. II. c. 22, s. 23, 24, and 22 Geo. II. c. 45, s. 5, 6, 7, 8, contain provisions for remedying the defect. The stamp is therefore an essential part of an indenture of apprenticeship; and formerly it was requisite that there should be one stamp in respect of the instrument itself, and another in respect of the fee or premium, where a fee was given; but two stamps have not been necessary in any such case since the consolidation of the stamp duties by the 44 Geo. III. c. 98, which afterwards gave place to the 55 Geo. III. c. 184, by which the stamp duty upon these instruments is now regulated (b). Cuerden v. Leyland, 2 Stra. 903; 2 Sess. Ca. 134; 1 Bott, 545. Case: The pauper was bound apprentice by indenture, and the master had 20s. paid him; he served three years, but the master never paid the duty of 6d. in the pound according to 8 Anne, c. 9, s. 39, which says, that if the duty be not paid, the indenture shall be void to all intents and purposes whatsoever. The case was referred to Fortescue, J., who went the circuit: And he held it a settlement, because the master had six months to pay the duty in; so that during those six months a settlement was gained, and it should not be in the power of the master to defeat it by matter ex post fucto. And pursuant to this opinion, the sessions held it a settlement. But upon debate in the King's Bench, the order was quashed: for they said, it was making the indenture good to one purpose, when the act of parliament had made it void to all intents and purposes whatsoever. And though it was a hard case, they could not break through the positive words of the act. Baxter v. Faulam, 1 Wils. 129; 1 Bott, 549. The question upon a de Where the duty is not paid, the indenture is void, and no settle ment acquired. (a) See division of the subject, ante, 423, and Vol. I. tit. Apprentices. (b) Quere, whether an indenture of apprenticeship, executed since the 55 Geo III. c. 148, would be affected by the decision in Rex v. Chipping Norton, Sixthly, Of settlement by apprenticeship. 6. Of the premium, &c. An indenture of premium stamp within the time prescribed by 8 Anne, c. 9; and where such an indenture was stamped at the produced in evi dence, with the stamp required by 55 Geo. 3, c. 184, but not within the time prescribed by 8 the indenture was altogether void, and that the pauper gained no settlement by serving under it. murrer was, whether an indenture of apprenticeship, where 6d. is mentioned to be the sum given with the apprentice, was void for want of the duty being paid for that sum. By the Court: no duty was ever intended to be paid for so insignificant a sum, there being no coin in England small enough to pay it. And by the act no stamp is required for less than 20s. Rex v. Yarmouth, H. 28 Geo. II.; Burr. S. C. 379. The pauper, W. Jackson, was bound and served a seven years' apprenticeship in St. Julian's, Norwich. But it appeared that the apprenticeship was in consideration of 6d. given to the master with the apprentice, and no duty was proved to be paid for the same: the point was given up, on the authority of Baxter v. Faulam, (ante, 463.) Rex v. Chipping Norton, 5 B. & A. 412. Removal of Jane Eely from Aynho to Chipping Norton. Order confirmed. Case: By indenture of the 30th October, 1794, William Eely, the late husband of the pauper, bound himself to serve R. Phillips, of Chipping Norton, as an apprentice, stamped with the for seven years, and Phillips, in consideration of 251., the sum given with the apprentice, covenanted to instruct him in the business of a cooper. The indenture was duly stamped, with a stamp denoting the payment of the several duties, amounting in the whole to 6s., imposed by different statutes upon the indenture itself; but it was not stamped with any stamp in respect time of its being of the premium, as required by 8 Anne, c. 9, within the time required by that statute, nor until the making of the order of removal, and after the entering of the appeal. Before the hearing of the appeal, the indenture was stamped, upon the payment of 51. penalty, and of 17., with a stamp denoting payment of a duty of 17., being the ad valorem duty stamp used to denote the payment of such duty under 55 Geo. III. c. 184, and 17., being Anne: Held, that the duty payable under that statute, in respect of a premium of 25l. given with an apprentice. The duty payable in respect of the like premium under 8 Anne, c. 9, was 12s. 6d. only; the duties payable under both the last mentioned statutes, were, after they were paid into the exchequer, applicable to the same purposes. The stamps used by the commissioners, under 55 Geo. III. c. 184, are of a different sort from those which were required to be procured and used by 8 Anne, c. 9, which were poundage stamps. These stamps were used until the passing of 44 Geo. III. c. 98, which imposed an ad valorem duty, and the poundage stamps were disused, and the dies with which they were formed were then broken up, and are not now in existence. Eely served under the indenture seven years.— Abbott, C. J. I am of opinion that this indenture was void, not having been stamped within the time required by law; and, consequently, that the pauper gained no settlement by serving under it. By 8 Anne, c. 9, s. 32, a premium stamp is imposed, and by sect. 36, indentures signed within the limits of the weekly bills of mortality, were required to be stamped within one month after the date, and by sect. 37, every indenture entered into elsewhere in Great Britain, shall be either stamped within two months, or brought, within that time, to some collector or officer appointed for the management of these duties, who shall indorse a receipt for the duty paid, bearing date on the day of payment. By sect. 38, indentures executed within fifty miles, to be computed from the limits of the weekly bills of mortality, shall be stamped within three months; and if at a greater distance, within six months after the date or making thereof. By sect. 39, all indentures not stamped within the respective times for that purpose limited by the act, are declared void, and not available in any court or place, or to any purpose whatsoever. Here, therefore, the legislature expressly requires that the instrument shall be stamped within the prescribed time, and declares that, in case of omission, it shall be void to all intents and purposes; and that forms a distinction between this case and those that have been cited in argument (a). Order of sessions quashed. Rex v. Oadby, 1 B. & A. 477. A poor child by indenture, executed by (a) Evidence of its contents would be admissible, it seems, if it had been lost before the time for affixing the stamp had expired. Bousfield v. Godfrey, 5 Bing. 418. The premium given by the parish officers, upon the binding out of a poor ap. prentice, need the indenture in words in full length; such an indenture being himself, his father and master, bound himself an apprentice. The parish Sixthly, Of paid all the expence of binding, and gave the master a premium of one settlement by guinea. The premium was not mentioned in the indenture. Was it void apprenticeship. for this omission ?-The Court thought that the act was entirely a revenue 6. Of the pre act. It contains no provisions but those relating to duties. Its title is," for mium, &c. laying certain duties on candles, and certain rates on monies paid with clerks and apprentices." It had been urged, that the premium should appear, as justices had a jurisdiction when the sum paid did not exceed 5l., and might award restoration of part. But the Court thought there was not in general such a penury of words in statutes, that if that had been the intention, it would not have been expressed in some corner of some clause.-Bayley, J., said, though sect. 39, in terms, requires the sum paid to be inserted, yet it was only for the purpose of raising a duty. When, therefore, sect. 40 exempts parish indentures from the duty, it entirely supersedes the necessity of inserting the sum paid; and the reason of the provision ceasing, the provision itself ceases to be necessary.-Abbot, J. The Court ought not, without seeing its way clearly, to hold this to be a good objection, for it may involve questions of considerable importance; such as the freedom of a corporation, and the following of a profession. Rex v. St. Matthew's, Bethnal Green, Burr. S. C. 574; 1 Bott, 641. 51. was inserted in the indenture as given with the apprentice, and was paid to the master, and the indenture had no stamp denoting the duty of 6d. in the pound being paid. This sum was paid out of a voluntary annual subscription for putting out children apprentices, brought up at the charity school of the parish of St. John, Wapping; and trustees are appointed annually for managing the charity, and a treasurer. It was objected, that this being a private and not a permanent charity, and consequently not within the exception of the act of parliament as to public charities, the indenture, therefore, not being stamped, was void. But by Lord Mansfield and the Court. It is a public charity, and a very laudable one. It is not necessary that it should be a permanent charity. The reason of the distinction between a public and private charity is obvious: a private charity might be calculated to evade the act; a public one cannot be supposed to have been so. But upon payment of the duty and penalty, and a reccipt thereof from the stamp office produced in evidence, the writing is made good. [See 8 Mod. 365.] not be set out in exempted from any duty by 8 the insertion of the premium only to ascertain Anne, c. 9, s. 40, being required the amount of the duty. A public annual charitable sub. scription, held to be a "public charity." A bequest of money to put out tices, is a "public charity" with children appren Rex v. Clifton upon Dunsmore, Burr. S. C. 697; 1 Bott, 641. G. Hammond, about thirteen years of age, was bound apprentice by indenture stamped with a treble sixpenny stamp, to W. W. of Swinford, for seven years. The consideration money in the indenture (being 71.) received by the master, was mentioned in the indenture to be paid by J. Bailey of Clifton, in 8 Anne. being charity money left by C. B., widow. The indenture was not stamped with any stamp denoting 6d. in the pound to have been paid, nor any apprentice duty paid. One item of the will was, “to Clifton 50l. to be given as my brother thinks fit; some of it to put out children apprentices."-The Court held this to be a public charity, and that therefore the duty was not payable on the apprentice fee. Rex v. North Owram, Burr. S. C. 145; 1 Bott, 462. The mother of S. Spenser, the pauper, proposed to put him apprentice to a master at North Owram, who refused to take him because he wanted clothes; but proposed to take him if they would clothe him, or give him money to clothe him with. The grandfather of the boy said he would do so. And it was agreed, that the grandfather should pay 30s. to the master to clothe the boy, and that the master should take him as an apprentice. In pursuance of that agreement, the master did lay out 30s. in clothing for the boy. Afterwards an indenture was executed by the master and the apprentice: the 30s. was paid by the grandfather to the master. The apprentice served under such indenture for six years in North Owram. In the indenture a covenant was made for the master to find clothes for the apprentice during the term. But no mention was made of the 30s., neither was any duty paid for the same, nor was the indenture stamped with the additional stamp required Where money is given by the apfather to the mas ter to clothe the enters upon his boy, before he apprenticeship; it is not such as the statute requires to be set prentice's grand. consideration as out in the indenture. |