date, name, age, master, &c., concluding with these words -" magistrates assenting "—and it was signed by the magistrates themselves: the court held this not to be sufficient; allowing the registry to be evidence of all the matters mentioned in it, it was not evidence of the previous order for the binding, or that it was referred to in the indenture by the date, &c., and without these no settlement could be gained (e).

If, however, the actual destruction of the instrument cannot be proved, then, in order to let in secondary evidence, the court must be satisfied by evidence that the original is lost, or that, after diligent search for it, it cannot be found; and parol evidence to this effect must be given by the person or persons who actually at one time had the custody of the original, or those legally entitled to the custody of it. Where respondents relied on an apprenticeship as evidence of a settlement; and respecting that, the party apprenticed said, "I was placed out a parish apprentice by the parish officers of Linthwaite, in the year, &c., by an indenture which was prepared, &c. ;" but the indenture was not produced, nor was any proof given that it was lost or had been searched for; and it was said to have been last seen in the hands of Sir Joseph Ratcliffe, a magistrate, "who cancelled it:" the court held that there was no legal evidence of a binding by the parish officers of Linthwaite (ƒ). But where it was proved by the mother of a pauper that, about four and twenty years before, having received money from the parish officers to put her son apprentice, she accordingly bound him to one Clay, and gave the indenture to the wife of one W. Badger, a market gardener, with directions to give it to the overseers; evidence was then given that Badger and his wife were dead, and that Badger's executor, upon being applied to, said that no such indenture was in his possession, or in the possession of Badger, at the time of his death; the parish chest was also searched, but no such indenture was there found: the court held this to be sufficient, to let in secondary evidence of the indenture; it was the duty of the parish officers to place it in the parish chest, and as it was not found there, the presumption was that it was lost or destroyed (g). So, in the case of an apprenticeship alleged to have taken place thirty-seven years before, it was proved that there had been two parts of the indenture, one given to the master, and the other to the father of the apprentice; the father gave his to one Buckley to get enrolled, and had not seen it since; the master gave his to one Standen, to whom he assigned the apprentice, and Standen gave it either to A. & B., his attornies, or to Buck

(e) R. v. East Stonehouse, 16 Law J. 49, m.

f) R. v. Inhabitants of Linthreuite, 13 Shaw's J. P. 297,

96.

(g) R. v. Stourbridge, 8 B. & C.

ley; A. proved that he searched among his papers, but could not find it; B. was dead, but a clerk of his executor proved that two boxes of his papers came to the hands of the executor, and that he had searched among them, but could not find it; and the executrix of Buckley proved that she searched among his papers, but could not find it; it was objected that the executor of B. ought to have been called: but the court heid that, considering the ancient date of the indenture, sufficient diligence had been used in endeavouring to find it in all quarters where it was likely to be, so as to let in secondary evidence of its contents (1). So, where the pauper had been bound apprentice to one Fowle, who kept the indenture; Fowle failed in business, and an attorney got possession of his papers; upon the trial of the appeal, in order to lay a foundation for secondary evidence of the indenture, Fowle being dead, a search for the original among his papers by the attorney, without success, was proved, but no inquiry had been made for it of Fowle's widow, who was still alive: the court held this to be sufficient, as the widow was not executrix or administratrix to her husband (m). So, where, in order to account for the non-production of an indenture of apprenticeship before justices, about to make an order of removal, it was stated by a witness that he went to the different persons who were likely to have it (stating the names and the answers given by them), some of whom told him they had searched for it, but could not find it, and in two instances he saw the search made; this was objected to, as the persons themselves ought to have been examined, and what they merely said should not have been received as evidence; but the court held it to be sufficient; it was merely required that reasonable evidence should be given, sufficient to satisfy the justices that a boná fide and diligent search had been made for the instrument; and as to the reception of hearsay evidence for the purpose, the hearsay in this case was a part of the transaction, a part of the proof that the witness had made a diligent search (n). So, where, in order to account for the non-production of an indenture, it was proved that a fire took place in the house in which the master had lived, which burned all he had, and that he and his wife were dead, leaving neither property nor relatives; and that the pauper had died since the removal, and that his father and mother were also dead: the court held this to be sufficient evidence of the destruction of the instrument, to let in secondary evidence of its contents (0). So, where a witness proved that, hearing that the indenture

(1) R. v. East Farleigh, 6 D. & R. 147.

(m) R. v. Piddlehinton, 3 B. & Ad. 460.

(n) R. v. Kenilworth, 14 Law J. 160; 7 Q. B. 642.

(0) R. v. St. Mary-le-bone, 4 D. & R. 475.

was in the possession of the pauper (who was then very ill, and shortly afterwards died), he called upon him and inquired about it, and the pauper told him that as soon as the indenture expired, it was given to him, and he burnt it; it was proved also, that an inquiry had been made of the master's executrix, who said she knew nothing about it; but it did not appear that search had been made for it among the papers of the master or the pauper: the court however held, that although this did not perhaps prove an actual destruction of the instrument, yet that it was sufficient to discharge the party of laches in not making further inquiry, and sufficient therefore to let in secondary evidence of the contents of the indenture (p). But where, on an appeal against an order for the removal of the widow of one Thomas Oldfield, the respondents set up a settlement of the husband by apprenticeship; and in order to entitle themselves to give secondary evidence of the indenture, they called the widow to prove that, in a conversation she had with her husband during his last illness, he stated that he had received his indenture from his master after his apprenticeship was ended, and he kept it in his pocket until it was all worn to pieces; the sessions thereupon admitted parol evidence of its contents, and confirmed the order: but the court of King's Bench held that what the husband said, if evidence at all, was at any rate a dangerous kind of evidence, and to be received with great caution; but that it was clearly not evidence, unless it were previously proved that the indenture had been in the possession of the husband; they therefore quashed the order of sessions (q). So, where it was proved that there had been two parts of the indenture, one given to the overseers, the other to the master: the one given to the overseers had been destroyed; that given to the master, he gave to a Miss Taylor, to whom he assigned the apprentice; upon application to Miss Taylor for it, she said she could not find it, nor did she know where it was, but she was not at the trial, nor was she subpoenaed: the court held that this was not sufficient; as Miss Taylor had not been called as a witness there was no evidence that the indenture she had was lost or destroyed (r). So, where it was proved that the master had the indenture, and upon application to him, he said that he had given it to the overseers; and the overseers proved a search for it without being able to find it: the court held this to be insufficient to let in secondary evidence of the indenture; for the declarations of the master, who might have been called as a witness, were not evidence (8). But it is only in cases where the indenture, if produced,

(p) R. v. Morton, 4 M. & S. 48.

(q) R. v. Rardon, 2 Ad. & E. 156.

(r) R. v. Castleton, 6 T. R. 236. See R. v. Saffron Hill, 22 Law J. 22, m.

(8) R. v. Denio, 7 B. & C. 620.

would be evidence, that this secondary evidence can be given of its contents. And therefore where it appeared to have been an indenture that required a stamp, and was not stamped, the court held that no secondary evidence ought to have been received of its contents (a). But in the absence of positive evidence of its not being stamped, the court, in all cases of indentures lost or destroyed, will be warranted in presuming that it was duly stamped, without requiring any evidence to that effect (b). In the case of a lost indenture, which was thirty years old, even although it was proved by the registrar and comptroller of apprentice duties, that no such indenture appeared to have been stamped or enrolled, the sessions held that after such a lapse of time they would presume the indenture to have been duly stamped: and the court held that they had done rightly, as the presumption of law was to be favoured (c).

Where it is in possession of the opposite party.] Where the indenture is in the possession of the opposite parties, or their attorney, agent (d), or banker (e), you may give notice to the opposite parties, a reasonable time before, to produce it upon the trial; and at the trial, upon your calling upon them to produce it, if they fail to do so, then upon proving, either expressly, or from circumstances from which the court may fairly presume it, that the original document is in the possession of the party required to produce it, or of his attorney, &c., you may give secondary evidence of its contents (f). But if, on the other hand, the indenture be produced when called for, it has been holden that it is not necessary that the party calling for it should prove its execution (g). As to the practice in such a case, in civil actions, see Arch. Pl. & Ev. Civ. Act. 421.

Where it is in the possession of some third party.] If the indenture be in the hands of some third person, not a party to the appeal or other proceeding, the party requiring its production may serve him with a subpœna duces tecum to produce it at the trial. If it be produced there accordingly, the execution of it must then be proved as in ordinary cases. it be not produced, and it appear that the witness has it, or has lost it, secondary evidence may be given of its contents (h).

If

(e) Partridge v. Coates, Ry. & M. 156. Burton v. Payne, 2 Car. & P. 520.

(f) Arch. Pl. & Ev. Civ. Act. 382-387.

(g) R. v. Middlezoy, 2 T. R. 41. (h) Arch. Pl. & Ev. Civ. Act. 387.

Service under a Defective Binding, not a Hiring and Service.

An imperfect apprenticeship, and service under it, can in no case be deemed a hiring and service, so as to confer a settlement. And therefore, where an apprentice was bound by an indenture, which, under the circumstances, required a stamp, but was not stamped, and he served the full time: the court held that he gained no settlement by it ;-not as an apprentice, because the indenture was not stamped; not as under a hiring and service for year, for the contract was one of apprenticeship (i). So, where the indenture was not under seal, the court held that the party gained no settlement, although he served more than two years under it (j). And the same, where the contract is, in substance, one of apprenticeship, but it is not in writing (k): As to what is, in substance, a contract of apprenticeship, and those cases of hiring and service which most nearly resemble it, see ante, p. 449, &c.

SECTION VII.

The Inhabitation.

Whilst serving the same
master, 549.
Whilst serving another, under
an assignment, 557.

Whilst serving another, with the master's consent, 557. Whilst serving another, after the master's death, 565.

Whilst serving the same master.] In this case, as in the case of hiring and service (see ante, p. 500), there must be a residence of forty days under the indenture, in some parish or place maintaining its own poor, in order to acquire a settlement-for the reasons already given, ante, p. 405. And therefore, where a boy was apprenticed, and served and resided in an extra-parochial place, it was holden that he gained no settlement by it (l). It is immaterial, however, whether the apprentice reside the whole forty days consecutively or at different times. Thus, where a boy was apprenticed to the sea service, to a shipowner at Stockwith, and served the first fourteen days of his apprenticeship at Stockwith, and afterwards at different times more than the remainder of forty days there, and never served forty days in any other parish: it was

(i) Salford v. Storeford, 2 Bott, 370.

(j) R. v. Nether Knutsford, 1 B. & Ad. 726. S. P. R. v. Tipton, 9 B. & C. 888.

(k) R. v. King's Lynn (St. Margaret's), 6 B. & C. 97. R. v. Mountsorrel, 2 M. & S. 460.

(1) Clerkenwell v. Bridewell, 1 Ld. Raym. 549.