REX. The King v. Auftrey; and again in a later cafe (a).WILLES, Justice, concurring, rule abfolute, and both INHABITANTS orders quafhed. of LANGHAM. parish indenture prentice; and 791. Rex v. John Saltern, Eafter Term, 24. Geo. 3. EDI- An appeal will TOR'S MSS.-The defendant John Saltern appealed against not lie against a an indenture lately made by the churchwardens and over- of apprenticefeers of the parish of Monkleigh, in the county of Devon, ship after exeand allowed purfuant to 43. Eliz. c. 2. f. 5. by two juf- cution of the tices; by which indenture Ann Mornich, a poor girl of counterpart by about eight years of age, was bound apprentice to the the appellant. faid John Saltern, for the fheaf or great tithes of the A girl of eight faid parifh. The feffions confirmed the indenture, and years of age may ftated the following cafe: THAT the appellant is, and for be bound apfeveral years has been, an inhabitant of the parish of it is for the fefMonkleigh; but that no glebe, or houfe, or barn, is ap- fions to judge propriated to the faid tithes, which are rated to the poor of the fitness. at 481. a year: that the appellant had executed the coun. A cuftom in a terpart of the faid indenture upon tender thereof: that parish to bind in refpect of the faid tithes no apprentice had heretofore only to occubeen bound; but that the custom of binding in that pa- piers of a parrith had been upon land of ten pounds per annum and up- tion is not good, wards; and that parole evidence was offered, but refufed by the court, to prove that at the time of the execution of the counterpart by the defendant, the indenture and counterpart were figned by one juftice of the peace only, although the indenture now produced to this court appears to be figned and allowed by two juftices. The cafe fet out the indenture, which stated the child to be put apprentice to Mr. Saltern" for the fheaf or great tithes of "the parish of Monkleigh, with him to dwell and serve "from," &c.-"MR. LAWRENCE and MR.CLAPPfhewed caufe. They argued firft, that whatever objections there might be to this indenture, the appellant was not at liberty to avail himself of them, being concluded by exe (a) The King v. the Inhabitants of Ideford, H. 16. G. 3. 1776. Burr. Settl. Cafes 821.; in which it was adjudged, that mere knowledge in a mafter of the fact with whom an apprentice lives during his term, is not without confent fufficient to make a legal fervice under the indenture. But this feems to be fo fettled in cafes only where all relation between the mafter and apprentice, as far at least as lies in the power of the mafter, Geafes; for if the master continue to ticular defcrip REX V. cuting the counterpart of the indenture. Three points, SALTERN. they faid, would be made on the other fide. FIRST, That the child was not of fufficient age to be bound apprentice, being only eight years of age. But might not a child of eight years of age be of ufe in a family? If it might, this binding would be good; for the unfitness was a matter of fact to be determined on evidence, and () Salk. 491. found by the feffions, as was held in Minchamp's Cafe (a); Ante, page 541 and unfitnefs not being found in the prefent cafe, the pl. 775. Court muft prefume that this child was fit to be bound. The line is in fome measure drawn by children going with their mothers for nurture till they are feven years of age after that age there must be an exprefs adjudication that they have gained no fettlement of their own: they can hardly gain one otherwife than by apprenticefhip. The ftatute of 5. Eliz. c. 4. requires apprentices in hufbandry to be ten years of age; but in all the other apprenticeships mentioned in that ftatute no age is fpecified. SECONDLY, That this binding was bad, as being contrary to the ufage of the parifh. But no fuch ufage could narrow the act of parliament, which faid nothing of the fort of occupation the mafter was to have; and no land was neceffary in this cafe, whe.e the child was bound as a menial fervant. THIRDLY, That the fetions had rejected parole evidence of the indenture being allowed by only one juftice. But this evidence was rightly rejected after the execution of the counterpart by the appellant; and befides, it was fufficient if the confent of the juftices was given in any way, although not expreffed on the face of the inftrument.-MR. FANSHAW and MR. GIBBS, contra. As to the preliminary objection, that the defendant is concluded from difputing an indenture which he has folemnly ratified by his execution, the answer is, that until the execution of the indenture there is no gravamen, The flature gives the party grieved an appeal to the next feffion, which must mean the feffion next after the execution (b). This objection being disposed of, they next contended that the binding was illegal and unfit: it is illegal, on account of the tender age of the apprentice: all acts in pari materia are to be taken together: ten years to the parton to of age is mentioned in the ftatute of 5. Eliz. c. 4. f. 25. whom any poor which is compulfory only on the apprentice: and now that the matter is compellable to receive an apprentice, there is an additional reafon for fixing a fufficient age. The statute of the 2. & 3. Ann. c. 2. alfo mentions ten (4) Sze this ftature post. r. c. years of age (a): and they alluded to a cafe where MR, (b) Pide arte, pl. 6. that by 8. & 9. Will. 3. e. 30. f. 5. the appeal is given child shall be appointed to be be bound. JUSTICE JUSTICE NARES had held that age to be neceffary (6). The binding is unfit, as being in refpect of the great tithes. SALTERN. It ought to appear that the apprentice can be useful in that way. The ufage cannot controul the law, but is ftrong evidence of inconvenience and unfitnefs. As to the last objection, this is an authority given by ftatute, and must be strictly purfued: an allowance by one juftice is not purfuing the ftatute; that fact can only be got at by parole evidence; and it is every day's practice to receive parole evidence of such facts; as in the cafe of arreft, that the bailiff's name was not in the warrant at the time of its execution by the fheriffs.-WILLES, Justice (c). No answer has been given to MR. LAWRENCE'S (6) Lord MANG first objection. I think the appellant is concluded by FIELD was abhaving executed the counterpart, and fhall not be al fent lowed to contradict his own deed; but as there may be a doubt on this point, I will confider the objections which have been taken to the indenture. FIRST, As to the age: no age is mentioned in the 43. Eliz. c. . . . under which this binding is made, or in the 8. &y. Will. 3. . which gives the appeal, and compels the matter to receive the apprentice. The ftatute 5. Eliz. c. 2. mentions ten years of age, but that is as to apprentices in hufbandry, where greater ftrength may be required: this is a girl bound in housewifery; and the statute of 5. Eliz. c. 4. cannot be connected with the 43. Eliz, c. 2. which is for the fuftenance of the poor. SECONDLY, With refpect to the custom of the parith, that is ftated only as evidence of unfitnefs, which is a matter for the difcretion of the justices: the mafter is in fufficient circumstances, having a poffeffion of 481. a-year in tithes. THIRDLY, The indenture purports to be allowed by two juftices; and, after the execution by the appellant, I think the feffions did right in rejecting the parole evidence: befides, it is fufficient if the juftices give their affent at any time before the feffions.-ASHHURST, Juftice. I am of the fame opinion. I think the appellant is concluded, and that the answers given to the objections would be fufficient.-BULLER, Juftice. There is one point made by MR. LAWRENCE to which I cannot agree, as to its not being neceflary for the juftices to fign the indenture: the conftant mode of giving their affent has been by fignature, and I fhould be forry to fhake that practice. How is a (6) But MR. JUSTICE BULLER faid, that was in a cafe where ten years was required by ftatute: he added, that it was the usual practice perfon Rxx. perfon on whom an apprentice is impofed to know wheSALTERN. ther the juftices have affented but by their fignature? In every thing elfe I concur entirely. I think the appellant is eftopped: he ought to have appealed inftead of executing the indenture. But there is no ground for any of the objections. I do not know that now even in hufbandry ten years are neceffary: the practice has, I believe, been to bind under the age of ten years. It is for the feffions to judge of the fitnefs. I have faid on many occafions that the ufage of a particular district cannot affect the conftruction of the ftatute.-ORDER CONFIRMED. INDENTURE of 792. Rex v. Harburton, Hilary Term, 26. Geo. 3. EDIparifh appren- TOR's MSS.-John Egbert was bound by the parish of Hartice may be dif- burton apprentice to William Soper, of the fame parish, agreement be- until he should be twenty-four years of age. folved by an attained twentyone years of age; and the affent of the parish He contitwixt the maf- nued to live with his mafter till within one month of his ter and appren- attaining twenty-one, when he deferted his fervice, and tice, after he has was abfent feven months, and then returned to his father in Harburton, with whom he flaid a few weeks. He then offered himself as a fervant to Edward Edmunds, of Ajhprington, who refused to take him until he fhewed a receipt from his mafter W. Soper for buying out his time. validity of fuch A receipt, expreffing the fum received to be for the remainder of his time, was accordingly procured by Egbert's See S. C. vol. ii. father from Soper, at the request and with the concursit. "Settlement rence of Egbert the apprentice. The mafter Soper offered by Apprentice- to give up the indentures to Egbert's father, but he did hip." officers is not neceffary to the agreement. not take them, not thinking it material; and the mafter kept the indenture in his cuftody uncancelled, and delivered it up to Egbert after his time was expired.-LORD MANSFIELD. In questions refpecting the continuation of apprenticeships, it would have been more convenient if the Court had never gone farther than to enquire whether the indentures were or were not cancelled, but that line has long been departed from; and it would now be inconvenient to overturn thofe cafes where the particular circumstances have been gone into. It is a clear line to go by, that whenever the indenture is fo far made an end of as to give the apprentice a remedy at law, it fhall be confidered as a diffolution of the apprenticeship; but if it were extended to every cafe where a court of equity would relieve, the enquiry would be endlefs. The true queftion, therefore, was, Whether the facts are fuch as put an end to the indentures at law, and could be pleaded in bar to an action on it? The mafter received four guineas; he gives a receipt for it as a confideration for the remainder of his fervices, and he offers to deliver up the INDENTURE: after after this if the mafter had brought an action on the indenture, we are of opinion, that the apprentice might have defended himself by plea of accord and fatisfaction, or he might have maintained trover for the indentures. The indentures must be confidered as no longer exifting. REX v. HARBURTON parish, but liv 793. Rex v. John Clapp, Hilary Term 29. Geo. 3. 3. Term A perfon occa Rep. 107. The parifh-officers of Sowton, Devon, having, pying land in a with the affent of two juftices for that county, appren- ing out of it, is ticed Sarah Hellier, a poor child of Sowton, to the defen- compellable to dant according to the ftatute, he appealed to the last Mid- receive a parisb fummer feffions at Exeter, when the order was con- apprentice. firmed, fubject to the opinion of this Court on the following cafe: This apprentice was bound prout the indenture to the appellant, who refided in the parish of Pinhoe on an estate which he rented and occupied in the parish of Sowton of the value of twenty pounds per annum, which was divided by the highway from the appellant's houfe in which he lived: there was no houfe on the estate of which the appellant was the occupier: the indenture, together with the apprentice, was tendered to the appellant in the parish of Sowton, in the highway adjoining to the faid eftate lying in the parish of Sowton.-LORD KENYON, Chief Justice. It is highly fit that this question fhould not remain any longer undecided. I remember a much older cafe than either of this mentioned at the bar, in which this question was difcuffed, but not decided. The question arifes on the fifth fection of the 43. Eliz. c. 2. The general provifo of that ftatute was to make a provifion for the maintenance of the poor; and the first claufe, in mentioning thofe who have to contribute to fuch maintenance, defcribed two forts of perfons, namely, inhabitants and occupiers of land, &c. Amongst other provifions for the poor, the fifth fection gives powers to the parish-officers, with the affent of two magiftrates, to bind poor children apprentices where they shall fee convenient. It is true indeed, that those words cannot be taken fo generally as they purport, because they cannot compel mere ftrangers who ftand in no relation to the parifh to take fuch apprentice; but I think that contraft of the statutes furnifhed the means of circumfcribing the general extent of thofe words; and that context I took from the fixth claufe, which impofes other burdens of the fame nature on occupiers of lands, &c. as well as inhabitants. The general object of the acts was to compel all those who had any property in the parish to contribute their due proportion towards the maintenance of the poor; and the receiving apprentices is one mode of contributing to |