Certain rules issued by the Poor Law Commissioners for regulating the binding of parish apprentices, provided, by article 5, that no person above the age of fourteen should be bound without his consent, and no child under sixteen should be bound without the consent of the father, or (if he was dead) of the mother of such child: provided that where such parent should be transported, &c. such consent should be dispensed with. Article 15. provided, that the indenture should be executed in duplicate by the master and guardians, and should not be valid unless signed by the apprentice without assistance, and that the consent of the parent when requisite should be testified by his signing the indenture; and where such consent was dispensed with under article 5, the cause of such dispensation should be stated at the foot of the indenture. They also required that the Justices who allowed the binding should certify at the foot of the indenture that they NEW SERIES, XXIII.-MAG. CAS.

had examined and ascertained that these rules had been complied with. An indenture binding a poor child purported on its face to be signed by the apprentice "without aid or assistance," and there was a certificate of a Magistrate at the foot, as required by the above rules. There was nothing on the face of the indenture, nor was any evidence adduced, to shew whether the indenture had been executed in duplicate, or the apprentice or his parents had consented to the binding, nor was any cause of such consent being dispensed with stated in the indenture: -Held, that these regulations were merely directory, and that the omission to comply with them (if established) would not affect the validity of the indenture; and that the certificate of the Magistrate afforded a presumption that the rules had been properly complied with.

Upon an appeal against an order, dated the 11th of February 1853, for the removal of James Spinks, therein stated to be of the age of fifteen years, and an orphan, from the parish of St. George the Martyr, in the borough of Southwark, in the county of Surrey, to the parish of St. Mary Magdalen, Bermondsey, in the said county, the Quarter Sessions confirmed the said order,

B

CASE.

On the hearing of this appeal it was proved by the respondent parish, that the pauper James Spinks had gained a settlement by apprenticeship in the appellant parish, if the indenture of apprenticeship under which he served was valid in point of law, with reference to the objections hereinafter stated, and the grounds of appeal applicable thereto.

The indenture, under which the said pauper served, was dated the 27th of October 1851, and was made between the churchwardens and overseers of the poor of the parish of St. Mary, Newington, in the said county of Surrey, of the first part, and Henry John Lord, a boot and shoe maker, of the second part; a copy of which indenture, together with the order for binding, allowances and certificates subscribed to or indorsed thereon, was annexed to, and was to be taken as part of this case (1).

The poor of the parish of St. Mary, Newington, are governed, provided for, employed, and managed, and the board of guardians for that parish are appointed, under a local act, 54 Geo. 3. c. cxiii., which said act was annexed to, and was to be taken as part of this case.

Certain rules of the Poor Law Commissioners, dated the 29th of January 1845, were given in evidence, at the trial of the appeal, by the appellants, and were proved to have been issued by the said Commis

(1) The indenture was in the ordinary form for the binding of "James Spinks, a poor child of the age of fourteen years or thereabouts, who can read and write his own name," and was executed by the churchwardens and overseers of St. Mary, Newington, and the master, and by the apprentice, the presence of the said churchwardens and overseers without any aid and assistance whatsoever." The certificate at the foot of the indenture was as follows:

in

"I, G. P. Elliott, Esq., one of the Magistrates of the police courts of the metropolis, sitting at the police court, Lambeth, within the metropolitan police district, and in the county of Surrey, who have assented to and allowed the above binding, do hereby certify that I have examined and ascertained that the rules, orders and regulations of the Poor Law Commissioners for the binding of poor children apprentices, and applicable to the above-named parish, contained in their general orders bearing date respectively the 29th day of January and the 22nd day of August 1845 have been complied with. Dated, &c. G. P. Elliott."

wardens and overseers of the said parish of St. Mary, Newington, more than fourteen days before the making and execution of the said indenture, and to be signed and sealed according to the statutes in that case made and provided-a copy of which rules was annexed to and formed part of this case (2). The said parish of St. Mary, Newington, is one of the parishes named in the schedule to those rules annexed.

The grounds of appeal applicable to the present case were as follows:-"That the

(2) These rules purported to be made in pursuance of the powers vested in the Poor Law Commissioners by the 4 & 5 Will. 4. c. 76. and the 7 & 8 Vict. c. 101. The following were the articles material to this case:

THE PARTIES.

Art. 1.-No child under the age of nine years shall be bound apprentice; and no child that cannot read and write his own name.

CONSENT.

Art. 5.-No person above fourteen years of age shall be so bound without his consent; and no child under the age of sixteen years shall be so bound without the consent of the father of such child, or if the father be dead, or be disqualified to give such consent, as hereinafter provided, or if such child be a bastard, without the consent of the mother, if living, of such child. Provided, that where the parent of such child, whose consent would be otherwise requisite, is transported beyond the seas, or is in the custody of the law, having been convicted of some felony, or for the space of six calendar months before the time of executing the indenture has deserted such child, or for such space of time has been in the service of Her Majesty, or of the East India Company, in foreign parts, such parent, if the father, shall be deemed to be disqualified as herein before stated, and if it be the mother, no such consent shall be required.

INDENTURE.

Art. 15.-The indenture shall be executed in duplicate by the master and the guardians, or the persons lawfully authorized so to do, and shall not be valid unless signed by the proposed apprentice, without aid or assistance, in the presence of the said guardians; and the consent of the parent where requisite shall be testified by such parent signing with his name or mark, to be properly attested, at the foot of the said indenture, and where such consent is dispensed with under the provisions contained in article 5, the cause of such dispensation shall be stated at the foot of the indenture by any clerk or other officer acting as clerk to the said guardians.

Art. 29. directs that the Justice or Justices who have allowed the binding shall certify, at the foot of the indenture and counterpart thereof, in the form there given, which was that followed in the present

case.

said indentures were and are illegal and void, because it does not appear in the said indentures that the said James Spinks consented to the alleged binding, or that either of his parents consented thereto; that, in fact, no such consent was given; that the said indentures were and are illegal and void, because it does not appear on the said indentures that there was any cause for the consent of the parents of the said James Spinks to the said binding being dispensed with; that the said indentures were and are illegal and void, because they do not comply with the enactments, or contain the requisites of the statutes now in force for the regulation of the binding of parish apprentices, and because they do not comply with the regulations of the Poor Law Commissioners.'

No evidence was given at the hearing of the appeal, except as appears from the indenture and the allowance thereof by the Police Magistrate and his certificate at the foot thereof, that the said indenture was executed in duplicate by the master and guardians, or the persons lawfully authorized to do so.

The said James Spinks was at the time of the alleged binding under the age of sixteen years, as appears by the said indenture.

No evidence was given on the hearing of the appeal (otherwise than by production of the indenture with the order for binding by the Police Magistrate and his allowance and certificate thereon) that at the time of the making and execution of the said indenture either of the parents of the said James Spinks was dead, or that either of the parents of the said James Spinks was at the time of the making and execution of the said indenture, or ever had been, transported beyond the seas, or in custody of the law having been convicted of felony; or that either of the said parents, for the space of six calendar months before the time of executing the said indentures, had deserted the said James Spinks, or for such space of time had been in the service of Her Majesty, or the East India Company in foreign parts; nor was any evidence given that the parents of the pauper, or either of them, were or was alive at the time of the binding; nor was any evidence given by the appellants that such binding

was without the consent of the pauper, or that the indenture was not executed in duplicate; but evidence was given by the pauper that, before being bound, he went to his master for a month on liking, and was afterwards, and before the binding, examined by the Magistrate who made the order for the binding and allowed the indenture.

It was contended, on the part of the appellants, that the said pauper gained no settlement by service under the said indenture, because the said indenture was illegal and void, inasmuch as it did not appear that the said indenture was executed in duplicate by the master and guardians or the persons lawfully authorized to do so, as is required by article 15. of the said rules; and inasmuch as it did not appear by the said indenture that the said James Spinks consented to the said alleged binding, or that either of his parents consented thereto, as required by article 5. of the said rules; and inasmuch as, if the said consent of the parents were dispensed with under the said proviso contained in article 5. of the said rules, the cause of such dispensation was not stated at the foot of the indenture as required by article 15. of the said rules, or in any manner whatever. The Court of Quarter Sessions overruled the objections and confirmed the order of removal, subject nevertheless to the opinion of the Court of Queen's Bench.

The question for the opinion of the Court was, whether, having regard to the grounds. of appeal, the indenture of apprenticeship be illegal and void on the grounds above alleged. If the Court should be of opinion upon the above objections, having regard to the grounds of appeal, that the said indenture was illegal and void, then the order of Sessions and the order of removal were to be quashed; but if the Court should be of opinion that the indenture was valid, then the order of Sessions was to be confirmed.

Locke and Corner, in support of the order of Sessions.-The only question is, whether this indenture of apprenticeship is valid, with reference to the objections raised by the grounds of appeal, which all relate to a non-compliance with the orders of the Poor Law Commissioners. The certificate of the Police Magistrate at the foot of the indenture is of itself sufficient

to make it valid. But, independently of this, all the rules, which are not merely directory, have been strictly complied with-The Queen v. Fordham (3). It is said that there was no evidence of the indenture being executed in duplicate. But, in the first place, this should have been specifically made a ground of appeal The Queen v. Birmingham (4), The Queen v. St. Mary, Bungay (5). Secondly, it is not a defect which avoids the indenture. The 15th rule expressly confines the avoidance of the indenture to the case where it is not "signed by the proposed apprentice without aid or assistance, in the presence of the said guardians." This appears on the face of the indenture to have been done.

[LORD CAMPBELL, C.J.-It would seem to be monstrous to require a third person relying on this settlement to produce and prove the duplicate.]

It is enough for them to shew a binding, even when the execution of a counterpart by the master is required by statuteThe King v. Fleet (6). The King v. St. Nicholas, Ipswich (7), shews that an indenture of apprenticeship is not void because it does not pursue all the statutory directions.

[COLERIDGE, J. referred to The King v. Stoke Damerel (8).]

There the statute expressly made the approval of the Justices necessary to the validity of the indenture. The next objection here is, that the apprentice did not consent to the binding. This, however, is not required to appear otherwise than by his signing the indenture; indeed, unless the apprentice was above fourteen his consent is not required by article 5. Here he is stated to be "of the age of fourteen or thereabouts."

[COLERIDGE, J.-His signature seems required to shew that he can read and write his own name, according to article 1.]

Still it does not appear necessary to

shew his consent by any other means. Then, it is said that the consent of the parents should have been shewn, or the cause of its omission stated. But it was for the appellants to prove that the indenture was executed under such circumstances as rendered their consent necessary, or that the cause of its being dispensed with was one provided for by article 5.

Knapp and J. Clerk, contrà.-First, as to the execution in duplicate. The grounds of appeal require the respondents to prove that everything necessary to support the settlement has been done. One of these requisites is the execution in duplicate; and as no evidence whatever was given of this, the settlement is not made out.

[LORD CAMPBELL, C.J.-There is the presumption omnia esse rite acta, which is strengthened by the Magistrate's certificate.]

That will not cure the defect, at all events, of the consent of the parents, or the reason for its omission not being stated. It must be presumed until the contrary be shewn that the parents are still living. It cannot be for the appellants to shew that the circumstances are such as to dispense with consent. The same observation applies to the want of any statement of the apprentice's own consent.

LORD CAMPBELL, C.J.-This case has been very ably argued, but I must say that I feel no doubt. In the first place, we are not to assume that the regulations of the Poor Law Commissioners have been violated in any respect; but we are bound to presume that the Police Magistrate has done his duty, and ascertained that they have been complied with; and there was no evidence to rebut this presumption: But supposing it were proved that the rules were not complied with in the respects complained of, I should still be of opinion that the Quarter Sessions were right in holding them to be merely directory. There is no nullifying clause in any of the articles, except as to the signing by the apprentice, which was complied with. As to the other matters, the Commissioners have directed them to be done, but the omission to do them does not affect the validity of the indenture.

Coleridge, J.-I think we must take