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The examination of a pauper stated that he was put out an apprentice by covenant indenture:-Held, that the nature of the binding was described with sufficient particularity, as distinguished from a binding by the parish.

A settlement set up in one of the grounds of appeal was, that the pauper had rented "a tenement," consisting of the keeping or feeding of a cow, of which he was the owner, "by and on the land and premises" of J. H, for the space of one whole year, and which was of the value of 10l. a year at the least: -Held, insufficient, as not shewing, on the face of it, that the cow was to be fed on the growing produce of the land.

On an appeal against an order of two Justices, for the removal of William Burdett, and Sarah, his wife, from the township of Denby, in the West Riding of the county of York, to the township of Cumberworth Half, in the same riding, the Sessions confirmed the order, subject to the opinion of this Court upon the following

CASE.

The examination respecting the settlement of the said William Burdett, and Sarah, his wife, whereon the said order was made, was the following:-This examinant (William Burdett) maketh oath and saith, I am sixtynine years of age, and the place of my settlement is at Cumberworth Half, in the said riding, which I gained by apprenticeship with Amos Burdett, of Gilfit, in Cumberworth Half aforesaid. When I was about fourteen years of age, I was put out an apprentice by covenant indenture to the said Amos Burdett for the term of seven years, to learn the trade of a clothier, and I went to, and resided with, the said Amos Burdett, in Cumberworth Half, under the said indenture, for five years and six months, when my brother, Joseph Morton, purchased my time out with my master for the sum of two guineas, which was paid by my mother, and the indentures were destroyed; and I have NEW SERIES, XIII.-MAG. CAS.

never done any act since whereby to gain a settlement. I was married at Louth, in Lincolnshire, to my wife, Sarah Roberts, in the year 1795. On the hearing of the appeal, as soon as the respondents had opened their case, the appellants objected that the said examination was insufficient on the face of it, and that the said order of removal ought, on that ground, to be quashed. The grounds of insufficiency relied on under the grounds of appeal, which properly pointed them out, were, that the alleged indenture of apprenticeship was neither shewn to have been produced before the Justices who took the said examination, nor was its loss or destruction sufficiently shewn, to let in secondary evidence before the said Justices of such indenture; and that, if a sufficient foundation were laid in the said examination to warrant the reception of such secondary evidence, then, that the secondary evidence given respecting the said indenture was wholly defective and insufficient, in the following respects; that is to say, that it did not appear by the said examination whether the said William Burdett was a parish apprentice, or by whom he was bound, or who were the parties to the supposed indenture; and that, if he were a parish apprentice, then, that it did not appear by the said examination whether the said binding was allowed by the Justices of the Peace; and that it did not appear by the said examination either that the money given or contracted for in relation to such apprentice was inserted in the said indenture, or that the said indenture was duly stamped, in pursuance of the statutes in force at the time when it was executed. The Court of Quarter Sessions, after hearing counsel on both sides upon the alleged insufficiency of the said examination, overruled the objections taken, and held the said examination good. The appellants, after such decision of the Court, conceded that the respondents could prove the settlement stated in the examination, and that settlement was taken as proved. The appellants proposed to rely on a subsequently-acquired settlement, as stated in the following, which was the seventh ground:-That, subsequent to the said alleged apprenticeship in our said. township of Cumberworth Half, that is to say, in or about the year 1812, the said William Burdett, the pauper, rented a cottage or tenement of the value and for the

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sum (which he paid) of 17. 10s. per annum, situate at Exley Gate, in your said township of Denby, in which he resided for the term of one whole year at the least, and the said pauper has ever since continued to reside, and does in fact now reside, in the same cottage at Exley Gate aforesaid; and that in or about the year aforesaid, and at the same time that he so occupied and resided in the said cottage or tenement at Exley Gate aforesaid, he also rented and occupied another tenement at Denby Hall, in your said township of Denby, consisting of the keeping or feeding of a cow, of which he was the owner, by and on the land and premises of James Haigh, of Denby Hall aforesaid, for the space of one whole year, and which was of the value of 107. a year at the least, and for which the said pauper paid to the said James Haigh the sum of 4s. a week during the whole year, whereby the said pauper did acquire a settlement, and is now legally settled in your said township of Denby. The respondents, upon this, admitted that the facts stated in the said seventh ground of appeal were all true; and it was agreed by the counsel on both sides, that evidence sufficient to establish the said seventh ground of appeal should be taken as having been adduced by the appellants; but the counsel for the respondents objected that the said seventh ground of appeal did not shew upon the face of it a legal settlement in the said township of Denby. After hearing this question argued, the Court of Quarter Sessions decided, that the said seventh ground of appeal did not shew upon the face of it a legal settlement in the said township, and thereupon confirmed the said order of removal, subject to the opinion of the Court of Queen's Bench.

If the Court of Queen's Bench should be of opinion either that the said examination is bad, as contended by the counsel for the appellants, or that the said seventh ground does shew a legal settlement in Denby, then the said order of removal and the said order of Sessions to be quashed; otherwise, the said order of Sessions and the said order of removal to stand confirmed.

Sir G. Lewin and Overend, in support of the order of Sessions.-As to the first point, a "covenant indenture” is a term that gives, on the face of it, sufficient information.

Supposing it to be necessary to shew whether the indenture was a parish indenture or not, the words of this examination do sufficiently shew it. The stat. 43 Eliz. c. 2. s. 5. provides, that churchwardens and overseers may bind poor children to be apprentices till such man child shall be of the age of twentyfour years, and such woman child of the age of twenty-one years, or the time of her marriage, "the same to be as effectual to all purposes as if such child were of full age, and by indenture of covenant bound him or herself." The statute, therefore, places a binding by indenture of covenant (which must be taken to be the same thing as a covenant indenture,) in contradistinction to a binding by the Justices. But it is sufficient to shew an apprenticeship, without saying whether the binding was by the parish or not. This kind of settlement is created by 3 W. & M. c. 11. s. 8, which uses the words, "apprenticeship by indenture." Then, as to the destruction, that is positively stated.

[LORD DENMAN, C.J.-You need not labour that point; but we will hear the other side on the objection to the examination, before we go into the other question arising on the grounds of appeal.]

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R. Hall and Pashley, contrà.-The examination should give full information as to the description of the indenture here it is ambiguous. The terms covenant indenture" do not define any particular sort of indenture; nor can it be said that the 43 Eliz. intended to draw any distinction, any more than if it had used the word "indenture" only, which would comprehend both descriptions of indenture: they both contain covenants. The terms used, "I was put," &c., would rather go to shew that the pauper did not bind himself. The terms 66 single and unmarried," and the word " occupy," have been considered ambiguous - The Queen v. Wymondham (1), The Queen v. the Justices of the West Riding, (Drighlington v. Pudsey,) (2), The Queen v. Old Stratford (3). So, "hiring and service," without more-The Queen v. North Bovey (4). To the same effect are The Queen v.

(1) 2 Q.B. Rep. 541; s. c. 12 Law J. Rep. (N.s.) M.C. 74.

(2) Ibid. 505; s. c. 11 Law J. Rep. (N.s.) M.C.80. (3) Ibid. 513; s. c. 11 Law J. Rep. (N.s.) M.C.115. (4) Ibid. 500; s.c. 11 Law J. Rep. (N.s.) M.C.71.

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Sir G. Lewin and Overend.-It does not appear, from the grounds of appeal, that the keeping and feeding of the cow constituted a tenement: for that purpose, it should appear that the cow was to be fed all the year round on the growing produce of the land-The King v. Bardwell (8), referring to The King v. Minster (9), where the point was not taken. Here the agreement would include a period when the snow was on the ground, and when, therefore, the cow could not have been pasture fed-The King v. Sutton St. Edmund's (10), The King v. Tisbury (11). The "keeping and feeding" of a cow does not necessarily imply pasture feeding, any more than the "going" of sheep, which was held to convey no such meaning in The King v. Thornham (12). It should have been expressly stated that the cow was to be pasture fed- The King v. Darley Abbey (13), The King v. Stoke-upon-Trent (14). The King v. Piddletrenthide (15) was decided on the ground that the right to take rabbits gave an interest in the land. The words here, "by and on the land and premises," would seem to imply feeding sometimes on the land and sometimes in a cow-house; and it would have been no breach of contract by James Haigh to have fed the cow by means other than pasture. The statement will not be aided by intendment-The Queen v. the Justices of the West Riding, The Queen v.

(5) 2 Q.B. Rep. 448; s. c. 12 Law J. Rep. (N.s.) M.C. 81.

(6) 11 Ad. & El. 90; s. c. 9 Law J. Rep. (N.s.) M.C. 12.

(7) 2 Q.B. Rep. 520; s. c. 12 Law J. Rep. (N.s.) M.C. 5.

(8) 2 B. & C. 161.

(9) 3 Mau. & Selw. 276.

(10) 1 B. & C. 536.

(11) 2 Nolan's P.L. 19.

(12) 6 B. & C. 733; s. c. 5 Law J. Rep. M.C. 70.

(13) 14 East, 282.

(14) 10 Ibid. 496.

(15) 3 Term Rep. 772.

Old Stratford, The Queen v. the Recorder of Leeds (16).

R. Hall and Pashley, contrà.-The feeding and keeping of the cow was a tenement within the 13 & 14 Car. 2. c. 12. The words "by and on the land," limits the feeding to the produce at the time. Hay previously severed could not be considered as forming any part of the land. The King v. Piddletrenthide was decided on the authority of Kinver v. Stone (17), which turned on the question of the profit derived from the warren, without inquiring into the mode of feeding rabbits in winter. The King v. Minster is an authority for the appellants.

LORD DENMAN, C.J.-Upon the first point, namely, whether the examination is good or not, we entertained some doubt at first; but I now think that the terms "covenant indenture" are sufficiently descriptive to allow the Sessions to deal with the case. As to the grounds of appeal, it appears to me, that that which is stated does not compose a tenement. The statement does not import that the cow was to be fed on the growing produce of any particular land, within the rule laid down in The King v. Tisbury, and that class of cases. I think the meaning which is sought to be introduced, as to the words, "by and on the land and premises," is quite out of the question; and that the description would be satisfied by shewing that the cow was to be fed by hay or other means on the premises. I think, therefore, that the appellants have given notice of that which they called a tenement, but could not prove to be so; and that the order of Sessions must be confirmed.

PATTESON, J.-I was not present at the former argument, but I quite agree as to the effect of the words "covenant indenture." As to the other point, it is said, that the notice purports that the cow was to be fed on the produce of the land during the whole year: that seems to me a very strong construction to put upon it. It appears to me, on reading it, that it would admit of the cow's being fed on the land as long as the produce lasted, and by other means when there was no grass for it to eat. The case of The

(16) 2 Q.B. Rep. 547. (17) 1 Stra. 678.

King v. Sutton St. Edmund's seems to me to shew the distinction more strongly than any other case. There Bayley, J. referred during the argument to The King v. Oswald Twissell, where the pauper rented, inter alia, the milk of a cow, to be kept by the owner; her keep made up the necessary value, 107., and she was, in fact, pasture fed; but it was held, that inasmuch as it did not appear to have been matter of bargain that she should be pasture fed, hiring her milk was not necessarily taking a tenement. I thought it would have been contended here, that (the value of the tenement being of 10.) the keep of the cow would be a tenement so far as she was fed on the produce of the land, though not so far as she was fed by other means, as in the very case of The King v. Sutton St. Edmund's, where the keep of the cows on the pasture during the summer months was admitted to be a tenement. Nothing of that sort, however, can be collected in this case.

COLERIDGE, J.-I think the Sessions were right on both points, though, on the first, I was of a different opinion on the former argument. It is important to look at the wording of the stat. 43 Eliz. c. 5, where an "indenture of covenant" is put in contradistinction to a parish indenture. It further appears, that in this case no application was made to the Magistrates when the indenture was put an end to. As to the second point, if we read the statement as any man of common sense must be supposed to do, it would seem, that the cow was to be fed and kept on the lands and premises of James Haigh. The use of the word "tenement" in the beginning, will not make that a tenement which otherwise would not amount to one, but the description is tied up with what follows as to the statement of the mode in which the cow was to be fed; and that does not necessarily constitute a tenement, for the reasons already given.

WIGHTMAN, J.-I am of the same opinion on both points. The word "tenement" is explained by what follows; and the "feeding and keeping" might, for anything that appears, be upon hay made in some former year, or on other land. The explanation given of what is meant by the word "tenement," is not sufficient to constitute it a tenement for the purpose of a settlement. Order of Sessions confirmed.

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Commitment-Sureties to keep the Peace -Gaol-House of Correction.

A commitment of a party who refuses to give sureties to keep the peace, need not be made to the gaol, but is good if made to the house of correction.

This was a rule calling upon G. Briscoe and J. Barker, the committing Magistrates, A. P. Brevitt, the party complaining before them, and the keeper of the house of correction at Stafford, to shew cause why a writ of habeas corpus should not issue to the keeper, commanding him to have the body of William Aston before this Court, on a day to be named by the Court. The ground of the application was, that the commitment ought to have been to the county gaol, and not to the house of correction. The affidavit, on which the rule was granted, stated, that William Aston had been committed, and was then confined in the house of correction, in and for the county of Stafford, under a warrant of commitment, under the hands of George Briscoe and John Barker, for refusing to find sureties to keep the peace towards Archibald Paul Brevitt. The warrant was in these terms :—

66 To all constables and peace officers in the said county, and to the keeper of the house of correction at Stafford, in the said county.

"Whereas Archibald Paul Brevitt, of the parish of Darlaston, in the said county, gentleman, hath made oath before us, George Briscoe and John Barker, Esqs., two of Her Majesty's Justices of the Peace in and for the said county of Stafford, that he is afraid that William Aston, of the parish of Lapley, in the said county, farmer, will do him some bodily injury, having so threatened, and hath therefore required surety of the peace and good behaviour against the said William Aston. And whereas the said William Aston has this day been brought before us to answer the said complaint; and upon our examination thereof, we, the said Justices, have ordered and adjudged, and do hereby order and adjudge, that the said William Aston shall find sufficient sureties to be

bound with him in a recognizance in the sum of 251. each, for him to keep the peace, and to be of good behaviour towards the Queen, and all her liege people, and especially towards the said Archibald Paul Brevitt, for the space of one calendar month now next ensuing. And whereas, the said William Aston hath refused, and doth now refuse, before us, to find such sureties, these are therefore to require you, the said constables, forthwith to convey the said William Aston to the said house of correction, and to deliver him to the said keeper thereof there, together with this precept. And we do hereby require you, the said keeper, to receive the said William Aston into your custody, in the said house of correction, and him there safely to keep for the space of one calendar month, unless he shall, in the mean time, find such sureties as aforesaid, to keep the peace and be of good behaviour for the term above mentioned. Given under our hands and seals, the 5th day of January 1844.

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George Briscoe (L.S.) "John Barker (L.S.)" The governor of the prison stated, in his affidavit in answer, that the gaol and house of correction were one and the same building, under the same continuous roof, and within the same boundary wall, and that he was governor of both; that all persons committed for assaults, or for want of sureties to keep the peace, either to the gaol or house of correction, were confined in one department, which was called "Misdemeanants' Class," being the only place in the prison that could be appropriated to so numerous a class of prisoners; and that, had the commitment of the said W. Aston been directed to the "keeper of the gaol," instead of to the "keeper of the house of correction," the said W. Aston would have been placed in the same class and building wherein he then was, and in all respects under the same rules and regulations as he had been.

Martin shewed cause.-The commitment in this case was legal. The 6 Geo. 1. c. 19. s. 2, after reciting the inconvenience of committing to the gaol persons charged with small offences, or for want of sureties, enacts, that it "shall be lawful for Justices of the Peace, within their respective jurisdictions, to commit such vagrants, and other criminals,

offenders, person and persons, either to the common gaol or house of correction." It appears from the 4 Geo. 4. c. 64. ss. 5. and 10. and 5 Geo. 4. c. 85. s. 10. coupled with the affidavits, that the Justices have the power of classifying the prisoners, and that Aston would have been placed in the same class, and in the same part of the building, if he had been committed to the gaol instead of the house of correction. The commitment is good however, notwithstanding the acts relating to gaols. He referred to Ex parte Evans (1), Willes v. Bridger (2), and the 18 Eliz. c. 3.

M. D. Hill, contrà.-At common law, and by various statutes, the commitment ought to have been to the gaol, of which the sheriff is the keeper; and it is submitted, that the alteration made by the 6 Geo. 1. c. 19. s. 2. does not apply to this case; secondly, it does not appear that the party committed has been heard in his own defence. Again, the 5th section of 4 Geo. 4. c. 64. provides, that where "any house of correction shall be part of the same building, or inclosed in the same boundary wall as, or shall be contiguous to the common gaol, or shall be under the superintendence of the same keeper and the same visiting Justices, it shall be lawful for the Justices of the Peace of the county, &c., assembled at any general or quarter sessions from time to time, with the consent of the sheriff of the county," to classify the prisoners. Here it does not appear, from the affidavits, that the conditions precedent have been complied with, that the house of correction is under the superintendence of the same visiting Justices, or that there has been any order at sessions, or any consent of the sheriff.

LORD ABINGER, C.B.-I think this rule must be discharged. The objection to this warrant of commitment is not that the party complaining ought not to be committed at all, but that he ought in terms to have been committed to the gaol, and not to the house of correction. The first question is, whether a commitment for want of sureties is legal; and of that there can be no doubt. The 6 Geo. 1. c. 19. s. 2, which gave Justices of

(1) 8 Term Rep. 172. (2) 2 B. & Ald. 278.

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