« EelmineJätka »
of the county
part of the expense attending the indenture is defrayed out of the public parochial funds. Ibid. (See antè, p. 163.)
Rez v. Hinckley, H. 58 G.3., 1 B. & A. 273. 1 Nol. P. L. 503. An indenture Removal from the liberties of Monks Kirby, in the county of War- stated that the wick, (which liberties have overseers appointed, and maintain their overseers and
churchwardens own poor separately from the other parts of the parish,) to the
of M. in the parish of Hinckley, in the county of Leicester. The sessions, on county of W., appeal, confirmed this order, subject to the opinion of the court with the conof K. B. on the following case : — The pauper was bound ap- sent of justices prentice by the churchwardens and overseers of the liberties of of the said Monks Kirby, to John Wright of Hinckley, by a parish inden- counts, bound ture, of the 3d of August 1795, which stated that J. B. and prentice to E. B., churchwardens of the liberties of Monks Kirby, in the T. W., of H. county of Warwick, and S. C. and J. T., overseers of the poor of in the county the said liberties, by and with the consent of the justices of the of 1., and the peace for the said county, whose names were thereto subscribed, justices in their had placed William Sansom, aged eight years or thereabouts, a in the margin poor child of the said liberties, apprentice to John Wright, of described themthe parish of Hinckley, in the county of Leicester, frameworkselves as justices knitter, with him to dwell and serve from thence until the apprentice should accomplish his full age of twenty-one years, according the
aforesaid: Held, to the statute in that case made and provided. The indenture ciently appeared was duly executed by all the parties thereto, and in the margin that they were che magistrates stated their consent, but described themselves as justices of the justices for the county aforesaid. The pauper served his master county of W. under this indenture in the parish of Hinckley, from the date of the indenture until its expiration, and during the whole of that period slept in that parish. The magistrates who signed the allowance of the indenture were magistrates for the county of Warwick, and also for the county of Leicester.—After argument, Ld. Ellenborough C. J. said, “ It is quite clear that the words county aforesaid' can only refer to the county of Warwick. The justices, we must presume, read the indenture before they allowed it; and indeed their very words of reference prove that it must have been so: then, if they did read it, they must have known that they had no authority to act, except as justices of the county of Warwick. The question after all really is, Whether said county and county aforesaid mean the same thing? If they do, it is evident from the body of the instrument that the words * said county' can only apply to the county of Warwick. It will follow, that the words · county aforesaid' must have the same application.”_Order of sessions confirmed.
So in Rex v. Countesthorpe, 2 B. & Adol. 487., by a parish in- Same point denture made in February 1816, which purported to be made where the between the churchwarden and overseers of the parish of D., in County last the county of Northampton, of the one part, and A. B. of Coun- « the said countesthorpe, in the county of Leicester, of the other part, it was ty,” is not that witnessed that the said churchwarden and overseers of the parish to which the asof D., with the consent of two of his majesty's justices of the peace
senting justices for the said county, dwelling in or near the said parish, had bound, belong. &c.: The justices, in their written consent in the margin of the indenture, described themselves as justices of the county aforesaid: and it was held, that the words “county aforesaid” had the same meaning as the words " said county in the body of the indenture; and that it sufficiently appeared by the reference to VOL. 1.
that the order
the latter words, that the consenting justices were justices of the
county of Northampton. The statute Rer v. Bawbergh, 2 B. & C. 222. Upon an appeal against an 56 G. 3. c. 139. order of justices for the removal of W. Pease from the parish of $ 1. requiring
St. Andrew, in the city of Norwich, to the parish of Bawbergh, in of justices for
the county of Norfolk, the sessions confirmed the order, subject the bind to the opinion of the court of K. B. on the following case:- W. of parish ap- Pease was an illegitimate child, born in Great Melton, in Norfolk; prentices shall
and by an order of two justices, bearing date the Ilth day of May be referred to
1819, and made under the provisions of stat. 56 G. 3. c. 139., and in the indenture by the date an indenture not stamped, was bound an apprentice. The order thereof, is com- of justices was set out at length; and the indenture of apprenticepulsory; and, ship stated, that the churchwardens and overseers, by and with therefore, an in- the consent of two justices for the county of Norfolk, whose names denture, in
were thereunto subscribed, bound W. Pease, a poor child, as an which the date of the order is apprentice, for the term of seven years, &c. ; but the indenture omitted, is void. did not mention the date of the order of justices, nor did it appear
whether they signed the indenture before or after the other parties. The parish officers of Melton paid the master the sum of 10l. (which was the premium stipulated to be paid by the indenture), and the pauper entered upon his apprenticeship, and served bis master at Bawbergh, for about a year and a half; when, on his master's failure, he left him and came to Norwich. -Bayley J. “I am of opinion that this indenture is void, and con. sequently, that no settlement was gained in the parish of Bawbergh. The statute of the 56 G. 3. c. 139. has introduced a variety of new regulations as to the mode of binding out parish apprentices. It requires that the child shall be carried before two justices, and they are to inquire into the propriety of binding such child apprentice to the person to whom it shall be proposed by the overseers to bind him; and if the justices shall, upon the inquiry, think it proper that the child shall be bound apprentice to such person, the statute then enacts that the justices shall make an order, declaring that such person is a fit person to whom the child may be bound as apprentice, and shall thereupon order that the overseer of the place to which the child shall belong, shall be at liberty to bind such child apprentice accordingly; which order shall be delivered to such overseer as the warrant for binding such child as aforesaid ; and such order shall be referred to by the date thereof, and the names of the said justices in the indenture of apprenticeship of such child; and after such order shall have been made, such justices shall sign their allowance of such indenture of apprenticeship, before the same shall be executed by any of the other parties thereto.' The statute requires specifically that the order should be referred to by the date ; and the object of that might be, that the order might be found with facility at any future period. The statute then requires that the justices shall sign the allowance of such indenture. Now, the word “such' is not immaterial; and the reference to the order by date, is either directory only, or it is of the essence of the indenture. I am of opinion that it means such an indenture as was before required, viz. one containing the date of the order of justices. The 5th section then enacts, that no settlement shall be gained by any child who shall be bound by the officers of any parish, &c. by reason of such apprenticeship, unless such order shall be made,
and such allowance of such indenture shall be signed as therein. Rex v. Baw. before directed. There must, therefore, be an allowance, not of bergh. such indenture, but of such indenture as was therein-before directed, ciz. of one referring to the order of justices by the date thereof. I doubt whether the 11th section applies to such a case as the present, or whether it applies only to such cases where the binding is by the parents, and not by the overseers; but I am clearly of opinion that, construing the 1st and 5th sections together, this indenture is void, and that no settlement was gained in the parish of Barbergh by the service under it.”—Best J. concurred.- Order of sessions quashed.
VI. (4.) Di Potice to the adverseers of the Parish in which the appren:
tice is to serve.
In the construction of the second section of the stat. 56 G. 3. When an ap€. 139. (see the section stated, antè, p. 160, 161.), it has been prentice is held, that when an apprentice is to be bound from one parish into bound from one another, it is necessary, before the allowance by the justices, to other, notice give notice to the overseers of the parish in which it is intended must (in all that the apprentice shall serve ; and that, whether the binding be cases) be given in the same or a different county. The first case on this subject to the overseers is Rex v. Newark-upon-Trent, 3 B. & C. 59., in which it was held of the latter. (Abbott C. J. dissentiente), that such notice was necessary to be given to the overseers, where the parish into which the apprentice was to be bound was within a different jurisdiction from the binding parish, though in the same counly. This decision was followed by Rer s. Threlkeld, 4 B. & Ad. 229., where it was held, that when an apprentice is bound from one parish into another, notice must be given to the overseers of the latter, though both be in the same county and jurisdiction. The judges, in giving their opinions on those occasions, went into a full consideration of the whole statute, and adverted incidentally to several points which may hereafter arise upon the construction of it. It is therefore judged advisable to state the circumstances of each of the two cases, and the judgments therein, at length.
Rez v. Inh. of Newark-upon-Trent, T. 1824, 3 B. & C. 59. A pauper, setRemoval of w. Hales, his wife and child, from the parish of tled in the paNewark-upon-Trent, in the county of Nottingham, to the township in the county of North Collingham, in the same county, the sessions on appeal of Nottingham, discharged the order, subject, &c.— The pauper, W. Hales, a poor was, pursuant boy, of and then legally settled in the parish of North Collingham, to an order of in the county of Nottingham, was on 18th June 1817, pursuant two justices of to an order of two justices of that county, bound apprentice by bound apprenthe churchwardens and overseers of the poor of the said parish to tice by the Edward Sutton, of the parish of Newark-upon-Trent, in the bo- churchwardens rough of Newark-upon-Trent, in the county of Nottingham, by and overseers indenture, for a term therein mentioned. A premium of 101, was
of that parish given with the apprentice to the master by the said churchwardens
another parish, and overseers, although only 5l. was set forth in the indenture as in a borough the sum paid. The two justices who signed the aforesaid order situate in the afterwards signed and sealed their allowance of the indenture of same county, apprenticeship before the same was executed by any of the other but having jus. parties thereto. The parishes of North Collingham and Newark- tices who had
to A. B. of
poor of the
R. v. Inh. of
upon-Trent are distant from each other about six miles, and in the Newark-upon
same county. No notice whatever was given to the overseers of the
poor of the parish of Newark-upon-Trent, or to any of them, of the diction therein. intention to bind out such apprentice; nor did they or any of them The indenture attend before the justices who signed the order and allowed the was allowed by indenture ; nor was any such notice alleged or attempted to be the two county proved to have been given, but the said justices allowed the said justices, but no notice was
indenture without any such proof of service or admission of notice. given to the
Newark is a borough situate in the county of Nottingham, having overseers of the justices who have exclusive jurisdiction therein. The pauper re.
sided under this indenture in Newark-upon-Trent more than forty parish in the
days. This case was argued in last term by Chitty in support of borough, of the intention to
the order of sessions, and Scarlett and Balguy contrà. There bind such ap
being a difference of opinion on the bench, the court delivered prentice, nor their judgments seriatim. — Littledale J. “I am of opinion the indid they or any denture of apprenticeship is invalid, because no notice was given of them attend
to the overseers of Newark-upon-Trent, and that no settlement was
gained under it. The question depends entirely on the construc: county justices who allowed
tion of stat. 56 G. 3. c. 139., which recites, that inconveniences had the indenture, been felt from binding poor children apprentices to improper perand admit such sons, and to persons residing at a distance from the parishes to notice: Held, which such children belong. [The learned judge here stated verby three justices, Abbott
batim sections 1, 2, 3. and 5. of the statute (see antè, p. 160, 161.), C. J. dissen
and then proceeded as follows :) In the present case I think it is tiente, that by not necessary to consider whether notice must, in all cases, be given 56 G. 3. c. 139. to the overseers of the parish into which the child is to be bound, the indenture
whether such parish be in the county to which the child shall was void for
belong, or in the district into which it is to be bound, or whether want of such notice.
the necessity of the notice to the overseers is to be confined to
other enactments, without any reference to a division into sections. R. v. Inh. of Much may be said on both sides of the question arising out of the Newark-upon
Trent. way in which the different sections are worded. There is nothing about notice in the first section; it only comes in the second sec. tion. Many comments may be made on the phraseology of that clause, as with reference to different parts of the same clause, and also with reference to the language of the first section. But, without considering that point, it is quite clear that in a binding into a foreign district, wbich this is, notice is requisite in general, unless it can be said,-first, that the clause as to the notice to the overseers is merely directory; or, secondly, that the clause in $ 3., that the allowance of two justices of the peace for the county within which the place in which such child shall be intended to serve an apprenticeship shall be situated shall be valid and effectual, although such place may be situated within a town or liberty within which any other justices of the peace may, in other respects, have an exclusive jurisdiction, supersedes the necessity of giving notice, where the power so given to the county justices is exercised by them. I think the clause of notice to the overseers is not merely directory. The object of the clause seems to be, that the overseers of the parish, in the foreign county, shall assist the justices of the binding county with such information as they can, as to the points which the act has directed to be investigated, and, therefore, the notice to these overseers seems an essential thing to be attended to, in order to get at all the preliminary information; it must, however, be observed, that in the fifth clause, which says, that no settlement shall be gained unless certain things are done, there is no mention of notice to the overseers. The clause is, that no settlement shall be gained by any child who shall be bound by the officers of any parish, &c. by reason of such apprenticeship, unless such order shall be made, and such allowance of such indenture of apprenticeship shall be signed, as herein-before is directed; and therefore it appears to be tantamount to saying, that if the order be made, and such allowance signed, the binding shall be effectual, though no notice be given; but inasmuch as the latter part of the second section directs, that the justices of a foreign district are not to allow the indenture till the notice be given to the overseers, and that, therefore, the notice to the overseers must precede the allowance by the foreign justices, the clause in g 5., which requires the allowance of iwo justices, means an allowance after notice to the overseers, and embodies that as part of the allowance. Then comes the question, Whether, if justices of the county exercise the powers given by the third section, the notice to the overseers is dispensed with ?' The third section does not, in terms, dispense with it, and one cannot see any ground for dispensing with it, merely because the county justices put themselves in the place of the foreign district justices. They can have no more power than the foreign district justices have; but by the second section the foreign district justices are not to sign the allowance till notice has been given to the overseers, and, therefore, if the county justices are to represent the foreign district justices, they should do so in every thing, and therefore only have a conditional power to allow the indenture; that is, after notice to the overseers. It may be contended, that by this third section the separate jurisdictions are