cannot, therefore, deny that the landlord had authority to demise. [Lord DENMAN, C. J. Then what is the use of this clause in such case? TAUNTON, J. He does not say that the landlord had not power to demise, but that he has not demised as the statute directs.] But, further, the act is sufficiently com*89] plied with by the reservation of rent in this deed. *Sect. 28. requires that the rent shall be "made payable to the treasurer to the said trustees." Here it is made payable to him. It is not said in the act that the rent shall be payable to him only.

But, supposing this objection to be well grounded, the deed, at all events, is only voidable, and ought not to be avoided now, when the defendant, by himself or his principal, has taken a benefit under it for several years. In Rex v. St. Nicholas in Ipswich, Burr. S. C. 91, (S. C. 2 Stra. 1066; Ca. temp. Hard. 323,) an indenture binding an apprentice for less than seven years, contrary to stat. 5 Eliz. c. 4, s. 26, was held to be voidable only, though sect. 41, declares that all indentures otherwise to be made than is by that statute limited, &c., "shall be clearly void in the law, to all intents and purposes." [TAUNTON, J. Lord Hardwicke there, Burr. S. C. p. 95, (Ca. temp. Hard. p. 324,) when he says that the indenture is "voidable only," adds, "at the election of the parties, if they think fit to take advantage of it." Here one party does so think fit.] In Rex v. Woolstanton, 1 Bott, 545, pl. 707, 6th edit., where a parish apprentice was bound for an indefinite time, the court said that the statute (43 Eliz. c. 2, s. 5,) where it speaks of binding such apprentices till the age of twenty-four, is only directory, "but if it were compulsory, the indenture would, for want of this, be only voidable." In Rex v. Evered, Cald. 26, the decision on 5 Eliz. c. 4, s. 26, was similar to that in Rex v. St. Nicholas in Ipswich, Burr. S. C. 91; S. C. 2 Stra. 1066; Ca. temp. Hard. 323. [TAUNTON, J. In many of these cases the principle acted upon, I think most erroneously, was, that the court would do all they could to support the settlement; and it *90] was thought *hard that a party should lose his settlement through a mistake in an instrument not drawn by him. See Rex v. St. Petrox, Burr. S. C. 250. These decisions shew the inconvenience of proceeding on considerations of hardship, and not on considerations of law.] Rex v. Evered, Cald. 26, does not fall within that observation; nor does Gray v. Cookson, 16 East, 13, which also recognizes the principle, that an indenture contrary to the statute, 5 Eliz. e. 4, is voidable only. Supposing, however, that the present deed is void under the local act, it is a good lease under the general turnpike act, 3 G. 4, c. 126, sects. 55, 56, which enable trustees to let their tolls, and do not prescribe any reservation of rent to the treasurer. The fourth section of that statute contains words sufficient to extend the provisions of sects. 55, 56, to proceedings in execution of the local act, 54 G. 3, c. cxxiv.; and sect. 55 of the general act is, in fact, referred to by the recital of the indenture in question.

Kelly, contrà. As to the first objection, there is no proof here of any execution by the trustees, and such execution is expressly required by the local act. The plaintiff has neither produced, nor given notice to produce, the counterpart which the trustees are said to have signed. If, indeed, it could justly be said that the execution by them was admitted by a recital in the deed, as the facts relied upon by the plaintiffs in Burleigh v. Stibbs, 5 T. R., 465, and Nash v. Turner, 1 Esp. 218, were admitted upon the deeds there produced, the defendant could not insist upon the point now taken. But the words relied *91] upon, *coming after, "In witness whereof," &c., have not the effect of a recital. In Com. Dig. Fait, (E. 2.) it is said, "So, a thing wrote after in cujus rei testimonium is no part of the deed, tho' it was wrote before the sealing and delivery of the deed, 2 Roll. 23, 1. 20;" and the other authorities cited under the same head are consistent with this, except that one contrary decision, Moore 3, (pl. 5.)(a), is referred to. Even if this were a recital, it

(a) The ruling, as stated in Moore, is, that that which is written in a deed after in cujus,

would be hard that such words, unsupported by other proof, should conclude the first party who executed, when perhaps the other never did execute. The plaintiff should have given notice to produce the counterpart, and thereby enabled himself to offer secondary evidence if it were withheld. The former decision in Pearse v. Morrice, 3 B. & Ad. 396, went upon a different point; this was not raised. [PATTESON, J. The question there was treated as one merely between landlord and tenant.] As to the second point, the alternative contended for would be contrary to the intention of the whole act, 54 G. 3, c. cxxiv. The trustees are numerous, and it might be important that some of them, at least, should not receive these rents unless under proper responsibility. If the rent were made payable to the trustees generally, any of them might receive, and give a valid discharge for it, and there is no remedy at law in case of embezzlement. On the other hand the treasurer, by sects. 11 and 12 of the local act, gives security, and is liable to account on oath. In the cases referred to, under the statute 5 Eliz. c. 4, *the clause making the inden[*92 ture void was obviously introduced for the benefit of one only of the parties, viz., the apprentice; and it might be considered that the maxim, quilibet potest renunciare juri pro se introducto, was applicable under such circumstances. So where an ordinary lease contains a clause avoiding it in case of certain misconduct of the lessee, the landlord need not take advantage of the forfeiture to annul the lease; still less can the wrong-doer avail himself of it against the wish of the landlord. The clause as to rent, in this indenture, is for the protection of both parties; the case therefore is not that of an instrument to be void or valid at the election of one party or the other. But when the Court decided as they did in Rex v. St. Nicholas in Ipswich, Burr. S. C. 91, (S. C. 2 Stra. 1066; Ca. temp. Hard. 323,) they determined against the letter of the statute, and, in effect, assumed the power of repealing it. The cases which have followed that decision have been founded on error, and the Court will not now commence a new class of cases on the same mistaken principle, especially in a matter which concerns the public. [Lord DENMAN, Č. J. It is suggested, on the other side, that you are too late now in attempting to take advantage of the defect relied upon.] This is the case of a surety, now called upon for the first time; he is not too late. As to the general act, 3 G. 4, c. 126, that only affects former acts in so far as it directs any thing inconsistent with their provisions; (see Rex v. The Trustees of the Northleach and Witney Roads, 5 B. & Ad. 978;) but s. 55, merely provides that the last bidder for the tolls shall "enter into a proper agreement for the taking thereof, and paying the money at the times specified in such notice" (as before directed,) *with such surety or sureties for payment thereof, and under such conditions and in such manner as the said trustees or commissioners [*93 shall think fit." It therefore leaves the provision of the local act, as to the reservation of rent, untouched.

Gunning, in reply. The placitum cited in Com. Dig. Fait. (E. 2), from 2 Roll. Abr. Faits, 23, 1. 20, is expressly contradicted by that in Moore 3, cited in Com. Dig. same title. In Sheppard's Touchstone, c. 4, p. 52, the In cujus rei testimonium is reckoned among the "formal or orderly parts" of a deed, "which make up the whole, of which the law doth take special notice." And whatever might be the case as to an ordinary clause of this kind, that in question is specially worded, stating that "to one part of these presents, intended to remain in the hands of the said Elizabeth Riches, the said trustees, parties hereto, have set their hands and seals, and to the other part thereof, intended to remain in the hands of the said trustees, the said Elizabeth Riches, George

&c., shall be parcel of the deed. In Bendloe, 1, pl. 2, which appears to be the same decision, the words are, that if any covenant, or condition, or proviso, be written after the conclusion of the indenture or, &c., sc. the in cujus, &c., it shall be accepted as parcel, &c. And 2 Rep. 70 b. is referred to in the margin.

Morrice, and John Morrice have set their hands and seals, the day and year," &c. That is a kind of statement not commonly inserted in such clauses, and (whether called a recital or not) must be taken as an allegation by the parties, under their hands and seals, of the facts therein mentioned; Burleigh v. Stibbs, 5 T. R: 465, is, therefore applicable. As to the supposed risk from the rents passing through the trustees' hands, no person is permitted by the local act (sect. 4) to officiate as a trustee, unless possessed of the rents and profits of lands, tenements, or hereditaments of the clear yearly value of 407., or having *94] one of the other equivalent qualifications there pointed out. It is said that in the cases of apprenticeship it was for the interest of the apprentice to waive the invalidity of the indenture; but that was not so in Rex v. Evered, Cald. 26, or Gray v. Cookson, 16 East, 13.

Lord DENMAN, C. J. With respect to the first point, it is unfortunate that the plaintiff did not give notice to the defendant to produce the part of the indenture said to have been executed by the trustees; but none of the Court think that the case turns upon that. It may be a question whether the clause reciting the execution would not be an estoppel to the party wishing to contend that such execution did not take place. The other objection, however, is important. The reservation of rent, and covenant for payment of it, are "to the trustees or their treasurer." I think that it should have been to the treasurer exclusively, and not to him or to some one else, who (according to the argument) might even be a stranger, or at any rate a person not easily to be found, or insolvent. Then the question is as to the effect of the words "null and void." It is extraordinary that there should be cases in which it has been held that those words should not have their usual meaning; but the word "void" has certainly been construed "voidable" in some instances, where the proviso was introduced in favour of the party who did not wish to avoid the instrument, or where the party in whose favour it was could not take advantage of it without acting against public policy. Here public policy is in favour of the stipulation that the deed shall not be enforced if the rent be made payable to the treasurer *95] *or to other persons, or in any other way than as the statute provides. Then it is said that the lease may be considered as one executed pursuant to the general act, 3 G. 4, c. 126; but I do not understand that that statute was intended to repeal any restrictions contained in former acts; the meaning of the clauses in that act which have been referred to is, that trustees shall enter into agreements under such conditions as they think fit, consistently with the powers given and duties prescribed by former statutes. The provision of the local act is, therefore, in full force, and consequently the indenture is void. It is said that the defendant is no longer in time for taking advantage of the present objection; but it appears to me that there is nothing to bind a surety in this respect; nor do I see, if the lease is void, why any party who would have been bound by it if valid, may not take advantage of its invalidity at any time. TAUNTON, J. It is contended that the words referred to by Mr. Gunning as a recital, are binding on the defendant as to the execution; though it is to be remembered that he is a surety, and therefore entitled to insist upon strict proof. On the other hand, Com. Dig. Fait (E. 2), has been cited, as showing that the words do not conclude him. I only wish not to be considered as acceding to the doctrine laid down on behalf of the plaintiff, because I am at present most strongly inclined to think, that words coming after "in cujus rei testimonium," are not part of the deed, and do not estop the party subscribing them. I do not however wish to be bound by that opinion, but only intimate it in the way *96] of protestation. On the other *point, as to the reservation of rent, I have no doubt whatever. There may be many reasons why it should be desirable to make the rent payable to the treasurer only. But, looking to the words of the act, if they are not obligatory, I cannot conceive to myself any words which can have a prohibitory force. The distinction between directory and imperative statutes has been long known; an early instance in which it was

taken, is the case of Strange (Rex v. Sparrow, 2 Stra. 1123), as to the time of choosing overseers. I understand the distinction to be, that a clause is directory where the provisions contain mere matter of direction and nothing more; but not so where they are followed by such words as are used here, viz. that anything done contrary to such provisions shall be null and void to all intents. These words give a direct, positive, and absolute prohibition, which cannot be dispensed with by the construction here contended for. In Rex v. Gravesend, 3 B. & Ad. 240, the ground upon which Lord Tenterden distinguished that case from Rex v. St. Nicholas in Ipswich, Burr. S. C. 91, (S. C. 2 Stra. 1066; Ca. temp. Hard. 323,) was, that in the latter case the words of the section relied upon were not negative or prohibitory, but permissive only; whereas, in Rex v. Gravesend, the statute (10 G. 2, c. 31, s. 5) contained a direct prohibition. By the statute now in question, the trustees, in granting leases, act under a power; the terms of the power must be complied with, as in other more familiar instances; and when it is expressly enacted that if this be not done the contract shall be void, I cannot fashion a doubt in my own mind upon the subject. It is said that the defendant is too late in taking this objection, but it is not explained how he is *so, and we are not told when the [*97 action was commenced; it may have been during the term of three years for which the lease was granted. The defendant's counsel has also suggested that this may be a good lease under the general turnpike act, 3 G. 4, c. 126. It is true that the intention of the legislature, as it appears from the preamble to sect. 4, was to establish one uniform code of laws for the management and maintenance of turnpike roads throughout the kingdom (an expectation in which the legislature was somewhat disappointed, since in the next session it became necessary to pass a new statute, containing a great number of clauses, to amend the former); but I do not see how the uniformity contemplated in the statute is disturbed by giving this local act its proper operation. If, indeed, the general act had contained provisions directly repugnant to those of 54 G. 3, c. cxxiv., I should have said that this act must yield; but, upon comparing the clauses, that does not appear to be the case. The direction in sect. 55, that the highest bidder shall enter into "a proper agreement" for the taking of the tolls, must be construed with reference to the clause on that subject in the local act; it does not repeal that act, nor give the trustees an arbitrary power of dispensing with its provisions. I am therefore of opinion that this lease is void, in consequence of the rent not being properly reserved.

PATTESON, J, I am of the same opinion, upon the second ground of objection. The meaning of the clause as to the reservation and payment of rent is, to prohibit its being paid to any one but the treasurer; and there is good reason for this, because otherwise a lessee might *at any time say that he [*98 had paid the rent to a trustee, although such trustee might never have brought it to the trust account. I have not the least doubt as to the signification of the words in sect. 28, of the local act, which declare that if the trustees, in making their lease, do not have it properly drawn, it shall be null and void. As to the cases in which "void" has been construed as (6 voidable," it is sufficient to say that none have occurred upon an act of this description; and in Rex v. Hipswell, 8 B. &. C. 466, and Rex v. Gravesend, 3 B. & Ad. 240, the Court has refused to carry that mode of construction farther, and has given the words" null and void" their full effect. As to the general turnpike act, I can find nothing there inconsistent with sect. 28, of the local act, and cannot think that the legislature intended to repeal that section. Upon the first objection submitted to the Court, I do not decide. I am by no means prepared to say that, if I were obliged to give a decision on that point, it would not be for the defendant.

WILLIAMS, J. I think the defendant is entitled to succeed upon the second objection. The twenty-eighth section of this act is not merely directory, like the clause (s. 1.) of 43 Eliz. c. 2, respecting the nomination of

overseers, which contains no prohibitory words: here it is expressly said that contracts not according to the act shall be null and void. With respect to the general turnpike act, a more than sufficient answer has been given by the rest of the Court. The fifty-fifth section directs that the last bidder shall enter into "a proper agreement;" the preceding directions, which are somewhat fanciful and laborious, are mainly designed to regulate the *99] putting up of the tolls to auction. It is said that the words "void to all intents and purposes," have been held before to mean "voidable" only. No instance has been given except in settlement cases, and in those I do not know why the obtaining of a settlement should not have been held to be an "intent and purpose" within the meaning of the enactments then in question. But, without determining that, it is sufficient to say, that those decisions afford no good reason for adopting the construction suggested in the present case. Nonsuit to be entered.(a)

The KING against The Inhabitants of the Vill of ST. GREGORY. Wednesday, Nov. 12

A local statute enacted, that certain guardians of the poor should have power to bind children apprentices, "provided such children be not bound for a longer term than until they shall have attained the respective ages following;" viz. a boy the age of twenty-two, and a girl that of twenty:

Held, that an indenture binding a boy for a longer term than that allowed by the act was not absolutely void, but only voidable.

ON appeal against an order of two justices for removing George Dalton, his wife and child, from the vill of Saint Gregory, in the county of Kent, to the parish of Gillingham, in the same county, the sessions quashed the order, subject to the opinion of this Court on the following case:

By a local public act, 1 G. 2, st. 2, c. 20., "for erecting a workhouse in the city of Canterbury; for employing and maintaining the poor there," &c., it is enacted that it shall be lawful for the corporation of the guardians of the poor of the city of Canterbury, constituted by that statute, "to set on work, until the age of fifteen years, any poor child or children of the said city or parishes," *100] *(within the said city) "who shall be, or whose father, mother, or such other relation who by law are obliged to maintain such child or children, are or shall be chargeable to any of the parishes in this act mentioned; and after such child or children have attained their age of fifteen years or sooner, the said corporation, by indenture under their common seal, have hereby power to bind and put forth such child or children apprentices, to any honest person or persons within the kingdom of England, who are willing to take such child or children, for any number of years the said corporation shall think fit; provided such child or children be not bound for a longer term than until he, she, or they shall have attained the respective ages following; that is to say, a boy the age of two-and-twenty-years, and a girl the age of twenty years."

The pauper, George Dalton, was, after he had attained the age of fifteen years (being a poor boy in the workhouse of the said city of Canterbury, and chargeable to one of the parishes in the said act mentioned,) bound by the guardians, in pursuance of the said act, to Edward Barber, of the parish of Gillingham aforesaid, cordwainer, under an indenture made October, 5th, 1827, between the said guardians of the one part and the said Edward Barber of the other part, to serve from the day of the date thereof, for, and during, and unto the full end and term of seven years from thence next ensuing, and fully to be complete and ended.

The Court of Quarter Sessions held that the pauper having been bound for a

(a) See the next case.