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REPORTS OF CASES
CHIEFLY CONNECTED WITH
THE DUTIES AND OFFICE OF MAGISTRATES.
VOL. XXIII. (NEW SERIES), COMMENCING WITH
MICHAELMAS TERM, 17 VICTORIÆ.
THE QUEEN O. THE INHABIT-
had examined and ascertained that these 1853.
rules had been complied with. An indenNov. 9.
ture binding a poor child purported on Parish Apprentice- Binding - Regula
its face to be signed by the apprentice
" without aid or assistance," and there was tions of Poor Law Commissioners-Con
a certificate of a Magistrate at the foot, struction-Directions or Conditions - Pre
as required by the above rules.
There was sumption.
nothing on the face of the indenture, nor was Certain rules issued by the Poor Law any evidence adduced, to shew whether the Commissioners for regulating the binding of indenture had been executed in duplicate, or parish apprentices, provided, by article 5, the apprentice or his parents had consented that no person above the age of fourteen to the binding, nor was any cause of such should be bound without his consent, and no consent being dispensed with stated in the child under sixteen should be bound without indenture : -Held, that these regulations the consent of the father, or ( if he was dead) were merely directory, and that the omission of the mother of such child : provided that to comply with them (if established) would where such parent should be transported, not affect the validity of the indenture; and &c. such consent should be dispensed with. that the certificate of the Magistrate afforded Article 15. provided, that the indenture a presumption that the rules had been proshould be executed in duplicate by the master perly complied with. and guardians, and should not be valid unless signed by the apprentice without assist- Upon an appeal against an order, dated ance, and that the consent of the parent when the 11th of February 1853, for the removal requisite should be testified by his signing of James Spinks, therein stated to be of the indenture; and where such consent was the age of fifteen years, and an orphan, dispensed with under article 5, the cause of from the parish of St. George the Martyr, such dispensation should be stated at the foot in the borough of Southwark, in the county of the indenture. They also required that of Surrey, to the parish of St. Mary Magthe Justices who allowed the binding should dalen, Bermondsey, in the said county, the certify at the foot of the indenture that they Quarter Sessions confirmed the said order, NEW SERIES, XXIII.-Mag. Cas.
subject to the opinion of this Court on the sioners, and sent by them to the churchfollowing
wardens and overseers of the said parish of CASE.
St. Mary, Newington, more than fourteen On the hearing of this appeal it was days before the making and execution of the proved by the respondent parish, that the said indenture, and to be signed and sealed pauper James Spinks had gained a settle- according to the statutes in that case made ment by apprenticeship in the appellant and provided—a copy of which rules was parish, if the indenture of apprenticeship annexed to and formed part of this case (2). under which he served was valid in point The said parish of St. Mary, Newington, is of law, with reference to the objections one of the parishes named in the schedule hereinafter stated, and the grounds of ap- to those rules annexed. peal applicable thereto.
The grounds of appeal applicable to the The indenture, under which the said
present case were as follows:-"That the pauper served, was dated the 27th of October 1851, and was made between the (2) These rules purported to be made in purchurchwardens and overseers of the poor
of suance of the powers vested in the Poor Law Comthe parish of St. Mary, Newington, in the
missioners by the 4 & 5 Will. 4. c. 76. and the
7 & 8 Vict. c. 101. The following were the articles said county of Surrey, of the first part, and material to this case :Henry John Lord, a boot and shoe maker,
THE PARTIES. of the second part; a copy of which indenture, together with the order for binding,
Art. 1.--No child under the age of nine years
shall be bound apprentice; and no child that canallowances and certificates subscribed to
not read and write his own name. or indorsed 'thereon, was annexed to, and
CONSENT. was to be taken as part of this case (1). The poor of the parish of St. Mary, New
Art. 5.- No person above fourteen years of age
shall be so bound without his consent; and no ington, are governed, provided for, employ
child under the age of sixteen years shall be so ed, and managed, and the board of guar- bound without the consent of the father of such dians for that parish are appointed, under a child, or if the father be dead, or be disqualified to local act, 54 Geo. 3. c. cxiii., which said
give such consent, as hereinafter provided, or if
such child be a bastard, without the consent of the act was annexed to, and was to be taken
mother, if living, of such child. Provided, that as part of this case.
where the parent of such child, whose consent Certain rules of the Poor Law Commis- would be otherwise requisite, is transported beyond sioners, dated the 29th of January 1845,
the seas, or is in the custody of the law, having
been convicted of some felony, or for the space of were given in evidence, at the trial of the
six calendar months before the time of executing appeal, by the appellants, and were proved
the indenture bas deserted such child, or for such to have been issued by the said Commis- space of time has been in the service of Her Ma
jesty, or of the East India Company, in foreign (1) The indenture was in the ordinary form for parts, such parent, if the father, shall be deemed to the binding of “James Spinks, a poor child of the be disqualified as hereinbefore stated, and if it be age of fourteen years or thereabouts, who can read the mother, no such consent shall be required. and write his own name," and was executed by the churchwardens and overseers of St. Mary, Newing
INDENTURE. ton, and the master, and by the apprentice, in Art. 15.-The indenture shall be executed in the presence of the said churchwardens and over- duplicate hy the master and the guardians, or the seers without any aid and assistance whatsoever." persons lawfully authorized so to do, and shall not The certificate at the foot of the indenture was as be valid unless signed by the proposed apprentice, follows:
without aid or assistance, in the presence of the “ I, G. P. Elliott, Esq., one of the Magistrates said guardians; and the consent of the parent where of the police courts of the metropolis, sitting at the requisite shall be testified by such parent signing police court, Lambeth, within the metropolitan with his name or mark, to be properly attested, at police district, and in the county of Surrey, who the foot of the said indenture, and where such conhave assented to and allowed the above binding, do sentis dispensed with under the provisions contained hereby certify that I have examined and ascertained in article 5, the cause of such dispensation shall be that the rules, orders and regulations of the Poor stated at the foot of the indenture by any clerk or Law Commissioners for the binding of poor children other officer acting as clerk to the said guardians. apprentices, and applicable to the above-named Art. 29. directs that the Justice or Justices who parish, contained in their general orders bearing have allowed the binding shall certify, at the foot date respectively the 29th day of January and the of the indenture and counterpart thereof, in the form 22nd day of August 1845 have been complied with. there given, which was that followed in the present Dated, &c.
G. P. Elliott."
said indentures were and are illegal and was without the consent of the pauper, or void, because it does not appear in the said that the indenture was not executed in indentures that the said James Spinks con- duplicate ; but evidence was given by the sented to the alleged binding, or that either pauper that, before being bound, he went of his parents consented thereto; that, in to his master for a month on liking, and fact, no such consent was given ; that the was afterwards, and before the binding, said indentures were and are illegal and examined by the Magistrate who made the void, because it does not appear on the order for the binding and allowed the said indentures that there was any cause indenture. for the consent of the parents of the said It was contended, on the part of the James Spinks to the said binding being appellants, that the said pauper gained no dispensed with; that the said indentures settlement by service under the said inwere and are illegal and void, because denture, because the said indenture was they do not comply with the enactments, illegal and void, inasmuch as it did not or contain the requisites of the statutes appear that the said indenture was exenow in force for the regulation of the cuted in duplicate by the master and guarbinding of parish apprentices, and because dians or the persons lawfully authorized they do not comply with the regulations of to do so, as is required by article 15. of the Poor Law Commissioners.”
the said rules ; and inasmuch as it did not No evidence was given at the hearing of appear by the said indenture that the said the appeal, except as appears from the in- James Spinks consented to the said alleged denture and the allowance thereof by the binding, or that either of his parents conPolice Magistrate and his certificate at the sented thereto, as required by article 5. foot thereof, that the said indenture was of the said rules; and inasmuch as, if the executed in duplicate by the master and said consent of the parents were dispensed guardians, or the persons lawfully autho- with under the said proviso contained in rized to do so.
article 5. of the said rules, the cause of The said James Spinks was at the time such dispensation was not stated at the of the alleged binding under the age of foot of the indenture as required by article sixteen years, as appears by the said in- 15. of the said rules, or in any manner denture.
whatever. The Court of Quarter Sessions No evidence was given on the hearing overruled the objections and confirmed the of the appeal (otherwise than by produc- order of removal, subject nevertheless to tion of the indenture with the order for the opinion of the Court of Queen's Bench. binding by the Police Magistrate and his
The question for the opinion of the Court allowance and certificate thereon) that at was, whether, having regard to the grounds the time of the making and execution of of appeal, the indenture of apprenticeship the said indenture either of the parents of be illegal and void on the grounds above the said James Spinks was dead, or that alleged. If the Court should be of opinion either of the parents of the said James upon the above objections, having regard Spinks was at the time of the making and to the grounds of appeal, that the said inexecution of the said indenture, or ever had denture was illegal and void, then the order been, transported beyond the seas, or in of Sessions and the order of removal were custody of the law having been convicted to be quashed; but if the Court should be of felony; or that either of the said parents, of opinion that the indenture was valid, then for the space of six calendar months before the order of Sessions was to be confirmed. the time of executing the said indentures, Locke and Corner, in support of the had deserted the said James Spinks, or for order of Sessions.—The only question is, such space of time had been in the service whether this indenture of apprenticeship of Her Majesty, or the East India Com- is valid, with reference to the objections pany in foreign parts ; nor was any evi- raised by the grounds of appeal, which all dence given that the parents of the pauper, relate to a non-compliance with the orders or either of them, were or was alive at the of the Poor Law Commissioners. The time of the binding; nor was any evidence certificate of the Police Magistrate at the given by the appellants that such binding foot of the indenture is of itself sufficient
to make it valid. But, independently of shew his consent by any other means. this, all the rules, which are not merely Then, it is said that the consent of the directory, have been strictly complied parents should have been shewn, or the with— The Queen v. Fordham (3). It is cause of its omission stated. But it was for said that there was no evidence of the in- the appellants to prove that the indenture denture being executed in duplicate. But, was executed under such circumstances in the first place, this should have been as rendered their consent necessary, or specifically made a ground of appeal- that the cause of its being dispensed with
T'he Queen v. Birmingham (4), The Queen was one provided for by article 5. v. St. Mary, Bungay (5). Secondly, it is Knapp and J. Clerk, contrà. --First, as not a defect which avoids the indenture. to the execution in duplicate. The grounds The 15th rule expressly confines the of appeal require the respondents to prove avoidance of the indenture to the case that everything necessary to support the where it is not “ signed by the proposed settlement has been done. One of these apprentice without aid or assistance, in the requisites is the execution in duplicate; presence of the said guardians." This ap- and as no evidence whatever was given pears on the face of the indenture to have this, the settlement is not made out. been done.
[LORD CAMPBELL, C.J.—There is the [LORD CAMPBELL, C.J.-It would seem presumption omnia esse rite acta, which is to be monstrous to require a third person strengthened by the Magistrate's certirelying on this settlement to produce and ficate.] prove the duplicate.]
That will not cure the defect, at all It is enough for them to shew a binding, events, of the consent of the parents, or even when the execution of a counterpart the reason for its omission not being stated. by the master is required by statute- It must be presumed until the contrary be The King v. Fleet (6). The King v. Șt. shewn that the parents are still living. Nicholas, Ipswich (7), shews that an in- It cannot be for the appellants to shew denture of apprenticeship is not void that the circumstances are such as to disbecause it does not pursue all the statu- pense with consent. The same observatory directions.
tion applies to the want of any statement (COLERIDGE, J. referred to The King v. of the apprentice's own consent. Stoke Damerel (8).]
There the statute expressly made the LORD CAMPBELL, C.J.-This case has approval of the Justices necessary to the been very ably argued, but I must say validity of the indenture. The next ob- that I feel no doubt. In the first place, jection here is, that the apprentice did not we are not to assume that the regulations consent to the binding. This, however, is of the Poor Law Commissioners have been not required to appear otherwise than by violated in any respect; but we are bound his signing the indenture; indeed, unless to presume that the Police Magistrate has the apprentice was above fourteen his con- done his duty, and ascertained that they sent is not required by article 5. Here have been complied with ; and there was he is stated to be “ of the age of fourteen no evidence to rebut this presumption: or thereabouts."
But supposing it were proved that the rules [COLERIDGE, J.-His signature seems were not complied with in the respects required to shew that he can read and complained of, I should still be of opinion write his own name, according to article 1.] that the Quarter Sessions were right in Still it does not appear necessary to holding them to be merely directory.
There is no nullifying clause in any of the (3) 11 Ad. & E. 73 ; s. c. 9 Law J. Rep. (N.s.)
articles, except as to the signing by the M.C.3. (4) 8 Q.B. Rep. 410; s. c. 15 Law J. Rep. (N.8.)
apprentice, which was complied with. As M.C. 65.
to the other matters, the Commissioners (5) 12 Ibid. 38 ; s.c. 19 Law J. Rep. (n.s.) M.C. have directed them to be done, but the 39.
omission to do them does not affect the (6) Cald. S.C. 31. (7) Burr. S.C. 91.
validity of the indenture. (8) 7 B. & C. 563 ; s.c. 6 Law J. Rep. M.C. 28. COLERIDGE, J.--I think we must take