1827.

The KING

บ.

KENYON.

note itself is confined to highways; it does not mention footways: and still further, all the footways in this case in reality constitute but one footway.

Coltman, contrà, was stopped by the Court,

BAYLEY, J.-There are two grounds upon which I am of opinion that this order cannot be supported. In the first place, I think it does not sufficiently describe the parish in which some of the footways ordered to be stopped up lie. Secondly, it does not in any degree describe the length or breadth of those footways, or order them to be sold. Now, upon the first point, the order is notice to the inhabitants of the parish that the footway is about to be stopped up; that is a measure in which they are all more or less interested. Therefore the order ought clearly and explicitly to describe the local situation of the footway, so that every inhabitant may have the opportunity of appealing against it, if he is so minded. The first of these footways is described as running across lands of R. W. in the parish of Flixton; the second as running across the said lauds of the said R. W.; and, though the parish is there omitted, I think the word "said" sufficiently fixes the situation of the lands, and, consequently, of the footway. But in the description of the third and fourth footways, both the name of the parish itself, and the word "said," as a reference to it, are dropped, and they are merely stated to run across the lands of R. W., and we cannot assume that the lands are the said lands; and then the order is bad, because there is nothing to shew that those footways are in the parish of Flixton. As to the other objection, I agree that under the 13 Geo. 3, c. 78, no power is given to stop up any highway, bridleway, or footway, except where another is substituted for it. But the 55 Geo. 3, c. 68, s. 2, pro

vides, first, for the case of substituting a new way for an old one; and then follows the provision upon which this question turns-" and also when it shall appear upon the view of any two or more of the said justices of the peace, that any public highway, bridleway, or footway, is unnecessary, it shall and may be lawful, by order of such justices, or any two of them, to stop up and to sell and dispose of such unnecessary highway, bridleway, or footway." By the words of this enactment it is clear that an order to stop up a footway must also be an order to sell; but it is said that the word "footway" has been inserted there by mistake, and that the legislature did not intend this power of sale to include old footways. Now, referring to the former statute, 13 Geo. 3, c. 78, it seems clear to me that such was their intention. It is true that by that statute no power was given to stop up an old footway without making a new one; but wherever that was done, the old footway was to be disposed of by some mode or other, though not by sale; and the subsequent statute having given power to stop up unnecessary footways, it was reasonable that the legislature should make a provision for converting them into money for the use of the public. Then if the justices are to make an order for stopping up and selling, it cannot be good unless it applies to both. The provision for each of those acts must be made at the same time, and even if that were not so, still the order must state the length and breadth of the footway stopped up, in order that it may be known what is afterwards to be sold. For these reasons I am of opinion that this order is bad, and must be quashed.

HOLROYD, J. and LITTLE DALE, J. concurred.

Order quashed.

1827.

The KING

v.

KENYON.

1827.

the father of

an apprentice against the

master, for not teaching the apprentice.

Plea, that de

fendant did

teach, until

HUGHES V. HUMPHREYS and another.

Covenant, by COVENANT. The declaration stated, that by a certain indenture of apprenticeship made between plaintiff of the first part, Owen Hughes of the second part, and defendants of the third part, defendants did covenant &c., to and with plaintiff, his executors, &c., that they, defendants, would use their best endeavours to teach and the apprentice instruct Owen Hughes in the business and profession of ran away and never returned, surgery and pharmacy, and all other the branches of the same; and also find and provide for Owen Hughes good, sufficient, and suitable meat, drink, and lodging, during the term of five years next ensuing from the day of the date of the indenture. Breach, first, that defendants did not nor would, after the making of the indenture, use their best endeavours to teach and instruct Owen Hughes in the business and profession of surgery and pharmacy, during the said term; but, on the contrary thereof, they, defendants, afterwards, and after the making of the indenture, and before the expiration of the term, to wit, on 5th October, 1825, at &c., wholly refused then, or at any other time, to teach and instruct Owen Hughes in

Replication, that on a certain day defendant refused, then or ever, to take back the apprentice, and thereby discharged him. Rejoinder, that the apprentice had previously en

listed as a sol

dier, and that plaintiff never requested defendant to take back the apprentice when he was

the said business and profession, contrary to the tenor and effect, true intent and meaning of the indenture, able to return. and of the covenant of defendants. Secondly, that deSurrejoinder, fendants did not nor would, after the making of the the apprentice indenture, find and provide for Owen Hughes good, had enlisted,

that soon after

defendant re sufficient, and suitable meat, drink, and lodging, during fused, then or the said term; but, on the contrary thereof, afterwards,

ever, to take

him back, and to wit, on &c., at &c., discharged Owen Hughes from wholly distheir employ, and neglected and then and there wholly refused, then or at any other time, to receive him into their employ, or to find and provide for him good, sufficient, and suitable meat, drink, and lodging, contrary to

charged him. Demurrer. Held, that the surrejoinder was bad, and

no answer to

the rejoinder; and that the plea was good, and an answer to the action.

the covenant of defendants. Plea, that Owen Hughes, after the making of the indenture, and before the expiration of the term, to wit, on &c., at &c., without the license or consent of defendants, or either of them, wrongfully deserted from and left the service and employ of defendants, his masters, and did not at any time afterwards return into such service and employ, but hath thence continually hitherto continued absent therefrom; and defendants further say, that they did continually, from and after the making of the indenture, until Owen Hughes so deserted and left the service and employ of defendants as aforesaid, use their best endeavours to teach and instruct Owen Hughes in the business and profession of surgery and pharmacy, and all other the branches of the same; and did also, during all that time, find and provide for Owen Hughes good, sufficient, and suitable meat, drink, and lodging, according to the form and effect of the indenture, and of the covenant of defendants in that behalf. Replication, to so much of the plea as relates to the time upon and subsequent to 5th October, 1825, that after Owen Hughes so left the service and employ of defendants as aforesaid, and during the term, and before the exhibiting of the bill of plaintiff in this behalf, to wit, on 5th October, 1825, at &c., defendants wholly refused then, or at any other time, to receive back Owen Hughes into their service or employ as such apprentice, or to use their best endeavours to teach and instruct Owen Hughes in the business and profession of surgery and pharmacy, and all other the branches of the same, or to find and provide for Owen Hughes good, sufficient, and suitable meat, drink, and lodging, according to the covenant of defendants, and thereby then and there discharged Owen Hughes from their service and employ. Rejoinder, that before the time of the supposed refusal in the replication to

1827.

HUGHES

v.

HUMPHREYS.

1827.

HUGHES

v.

HUMPHREYS.

part of the plea of defendants mentioned, and before the exhibiting of the bill of plaintiff in this behalf, to wit, on 5th October, 1825, Owen Hughes enlisted and entered into the service of his Majesty as a common soldier, and remained and continued in the service of his Majesty as such common soldier for a long space of time, to wit, hitherto, and was thereby during all that time wholly incapacitated from serving defendants as such apprentice and defendants further say, that plaintiff did not at any time after Owen Hughes so quitted and left the service and employ of defendants as such apprentice, and before Owen Hughes so enlisted as such soldier, or at any other time, request defendants to receive back Owen Hughes into their service as such apprentice, when Owen Hughes was ready and willing and capable of returning into such service; nor did Owen Hughes tender himself to defendants, or offer during that time to return into the service and employ of defendants as such apprentice. Surrejoinder, that a little time after Owen Hughes so enlisted and entered into the service of his Majesty as a common soldier, as in the rejoinder of defendants is in that behalf alleged, to wit, on 5th October, 1825, to wit, at &c., defendants refused, then or ever, to receive back Owen Hughes into their service and employ as such apprentice, and then and there wholly discharged Owen Hughes from their service and employ as such apprentice, and discharged Owen Hughes from returning or offering to return, then or ever, into the service of defendants as such apprentice. Demurrer and joinder.

W. O. Russell, in support of the demurrer. First, the plea is good, and is a bar to the action. It states a sufficient excuse for the neglect to maintain and teach the apprentice, which is charged in the declaration as a