contended, that the company had a mere license to enter and take limestone at a certain price, and had no occupation of the quarry to the exclusion of other persons, for that there was nothing in the contract entered into which could prevent the owners of the quarry from getting stone there themselves, or permitting others to do so. In Rex v. Joliffe, 2 T. R. 90, the defendant was held not to be rateable in respect of a "rail road, because he had [*61 not the exclusive occupation of the soil; and in Rex v. Bell, 7 T. R. 598, the defendant was held to be rateable for such a rail road, because in the latter case he had the exclusive occupation. Applying those cases to the present, it is clear that the Navigation Company were not rateable for the limestone quarries.

The court desired that the case might go down to the sessions again in order to ascertain whether the company had been in the exclusive occupation of the quarry. In order to save expense, affidavits were filed, by which it appeared that the owners of the quarry having, in 1796, failed to furnish the company with the stone required, they entered, and had ever since worked the quarry themselves, paying 2d. a ton for the stone gotten. No other person had ever worked or attempted to work stone there except the company. These affidavits having been commented upon by each side,

[*62

ABBOTT, C. J., now gave judgment. This questien came before the court under such peculiar circumstances that it was not likely that any case would be found bearing materially upon it. None such has been discovered; nor is it probable that our decision can form a precedent for any other case. The question is, whether under the contract set out in the case, and that which has taken place under it, the company were occupiers of the quarry in respect of which they were rated. The contract is, that the owners of the quarry shall supply, at a certain price, as much stone as the company think fit to *order; and that if they neglect to do so, the company may enter and work the stone for themselves, paying to the owners a certain sum for every ton so worked. The owners having neglected to supply the stone ordered, the company many years ago entered, and have ever since worked the quarry for themselves; and, in point of fact, no one else has ever got stone there. But the right of the company was merely to get there what stone they might think fit; there was nothing in the contract to prevent the owner from giving to others also the privilege of getting stone in the same quarry. The company therefore, had not any sole and exclusive occupation, but a mere privilege, and, consequently, were not liable to be rated to the relief of the poor.

Order of sessions quashed.

The KING v. THACKWELL et al., Churchwardens and Overscers of the Poor of MONMOUTH.

Where overseers' accounts, allowed by three justices, were delivered to the successors so late that they could not appeal to the next sessions: Held, that an appeal to the next practicable sessions was in time, and that the justices might then respite the appeal although the respondents objected to the delay.

THE late churchwardens and overseers of the poor of the parisa of Monmouth, went out of office on the 25th of March, 1824. Their accounts were allowed by three justices on the 27th. On the 28th, successors were ap pointed. On the 7th of April, the next quarter sessions were held at Usk,

thirteen miles from Monmouth. On the same day at two o'clock, when it was too late to enter an appeal, the late churchwardens and overseers delivered their accounts, allowed as aforesaid to their successors. At the Midsummer sessions, an appeal against the allowance of those accounts was entered *63] and respited, although the respite was objected to by the respondents; and at the Michaelmas sessions, the order for the allowance of the accounts was quashed. The order of sessions having been removed by certiorari, and a rule obtained for quashing it,

Maule, in support of the order, contended, that as the accounts of the late overseers were not delivered until it was too late to examine them and enter an appeal at the Easter sessions, the Midsummer sessions, were for this purpose to be considered as the next after the allowance, and that the justices did right in suffering the appeal to be then entered and respited.

Campbell, contra. By the 17 G. 2, c. 38, s. 4, an appeal against the accounts is given to the next quarter sessions, and the justices there assembled are required to receive the appeal, and to hear and finally determine the same; "but if it shall appear to the said justices that reasonable notice was not given, then they shall adjourn the said appeal to the next quarter sessions, and then and there finally hear and determine the same." Upon this enactment it is plain, that supposing the appeal to the Midsummer sessions to be in time, still the justices had no power to adjourn it. That power is limited to cases where reasonable notice has not been given. Here, so far from objecting to the insufficiency of the notice, the respondents objected to the adjournment of the appeal. But it is not clear that the appeal at the Midsummer sessions was in time, the accounts were allowed on the 27th of March, the appeal *64] might therefore, have been to the sessions holden on the 7th of April, Rex v. Justices of Worcestershire, 5 M. & S. 457. [Bayley, J. The appeal must be to the next practicable sessions, Rex v. Justices of Essex, 1 B. & A. 210.]

*

ABBOTT, C. J. It is quite clear, that under the circumstances of this case the parties were not bound to appeal at the Easter sessions, and at Midsummer, it was for the justices and not for us to decide whether it would be proper to respite the appeal to Michaelmas.

Order confirmed.

THE KING v. ILKESTON.

An apprentice, who lived and worked with his master in the parish of I., went home to his father's in the parish of R. every Saturday, and slept there on Saturday and Sunday nights, (with his master's leave,) and returned to work on Monday morning. The apprentice having returned, and worked as usual on a Monday, left his master in the evening, and never returned: Held, that the sleeping in R. being merely by way of indulgence, and not for the purposes of the apprenticeship, was not sufficient to confer a settlement.

THE pauper, Ann Whinyates, was removed by an order of two magistrates from Radford to Ilkeston. The sessions on appeal confirmed the order, subject to the opinion of this court, upon the following case. John Whinyates, the pauper's husband, was bound apprentice by indenture dated the 22d of December, 1818, for the term of seven years, to Benjamin Roberts, a boat builder, an inhabitant of Ilkeston. During the first two years of his apprenticeship, the pauper's husband lodged with his father in the parish of Radford, serving his master in Ilkeston. Afterwards he worked and lodged with his

master in Ilkeston, but regularly, and with the knowledge and consent of his master, went to his father's at Radford, on the Saturday night, and slept there on the Saturday and Sunday nights, and returned to his master at [*65 Ilkeston, on the Monday morning. On the Saturday before the Nottingham fair, in the month of October, 1822, the pauper's husband went to his father's as usual, and slept there on the Saturdry and Sunday nights, and returned to his master's on the Monday, and worked for him that day, and in the evening asked and obtained his master's permission to go home again, for the purpose of being at the fair at Nottingham, on the following day. He left his master that evening accordingly, and never returned, having enlisted for a soldier a few days afterwards. The pauper's husband did no work for his master in Radford, on the Saturday night and Sunday, nor at any other time while he was at his father's. The indentures were retained by the master, till applied for some days after the pauper had enlisted, when he gave them up.

Marryat, (with whom was S. Phillipps,) in support of the order of sessions. The settlement of the pauper was in Ilkeston, and not in Radford. The occasional residence with his parents in the latter parish was not connected with the purposes of the apprenticeship, but was merely an indulgence granted by the master. It was not therefore, such a residence as could confer a settlement, Rex v. Ribchester, 2 M. & S. 135, Rex v. St. Mary Bredin, 2 B. & A. 382, Rex v. Brotton, 4 B. & A. 84. (He was then stopped by the court.)

pau

Balguy and N. R. Clarke, contra. It has long been settled that an appren tice gains a settlement where he sleeps and not where he serves. [Bayley, J. That is where he sleeps for the purposes of the apprenticeship.] [*66 The pauper slept in Radford, for the purposes of the apprenticeship, he went there with the consent of his master, and in order to return to his work on the Monday morning. There is nothing to show that the master had not at all times a control over the apprentice, and the case states, that the latter finally quitted his master's service on a Monday evening, having worked with him during that day, and having slept in Radford, the preceding Sunday night. At that time, therefore, he had the intention of returning, which was proved by his actual return to the master's service on the following day. The case is therefore, entirely different from Rex v. Ribchester. There the per went away on a Saturday, and never returned, and the case was decided on the ground, that Friday must be considered as the last night of the appren ticeship, and accordingly the apprentice was held to be settled where he slept on that night. Here the pauper continued in the service of his master on the Sunday night, for he returned as usual and worked for him on the Monday morning; he therefore, gained a settlement in Radford, where he slept on that night. In Rex v. St. Mary Bredin, and Rex v. Brotton, the service was clearly relinquished for a period by the master; here, it does not appear that he ever relinquished it at all. The apprentice never worked for his master on Sunday, and Rex v. Castleton, Burr. S. C. 569, shows that if the apprentice had, without asking his master's leave, gone home on Saturday and Sunday nights, to sleep in Radford, he would have gained a settlement there; and the express assent of the master to this sleeping in Radford, cannot vary the case, Rex v. Stratford-upon-Avon, 11 East, 176.

[*67

ABBOTT C. J. I am of opinion that the pauper did not gain a settlement in Radford, the place of his father's residence, at which he slept on Saturday and Sunday nights, but at Ilkeston, the place of the master's residence, where he slept the other five nights in each week. The words of the 3 W. § M. c. 11. s. 8. are, “If any person shall be bound an apprentice by indenture, and inhabit in any town or parish, such binding and inhabitation shall be adjudged a good settlement." The true construction of that provision appears to be, that the inhabitation must be in the character of an apprentice, and in some

way or other in furtherance of the object of the apprenticeship. An inhabitation by indulgence then is not within the statute. The case before us states, that the pauper worked and lodged with his master in Ilkeston, but, with the consent of his master, went on Saturday night to his father's at Radford and spent Sunday with him, and returned to his word on Monday morning; that certainly was a residence in Radford by indulgence only. There may, indeed, be cases, and some such have arisen, where an inhabitation in a parish different from that in which the master resides may be in furtherance of the service; for instance, where a master cannot take an apprentice into his own house, and appoints or allows him to choose a residence in another parish, so that he may return to his work every morning. But the facts of this case *68] show, that the sleeping in Radford was merely for *recreation, and had no connection with the service. The apprentice did not therefore gain any settlement in that parish, and the order of sessions was right.

BAYLEY, J. Where the master appoints no place for the pauper to sleep, or appoints a place out of the parish where the service is performed, I agree that a settlement is gained in the parish where the apprentice sleeps, and that was the ground on which Rex v. Castleton and Rex v. Stratford-upon-Avon proceeded. Le Blanc, J. expressly put the latter case, on the ground that the pauper slept in Old Stratford as an apprentice. But if an apprentice in general resides with his master, and is allowed once a week, as an indulgence, to visit his parents in another parish, he does not lodge there as an apprentice, and I cannot see that the case is varied, whether the indulgence be for days or for months. If so, this case is decided by Rex v. St. Mary Bredin and Rex v. Brotten.

HOLROYD, J. Concurred.

Order of sessions confirmed.t

+ Littledale J. was in the Bail Court.

*69]

*HICK v. KEATS, (in Error.)

Debt on bond. Plea, that before the making of the bond, plaintiff carried on the wine and spirit trade, and was induced by her two sons to sell it; that she did sell it, advan ced the proceeds and what other money she had, amounting to 1000l., to her sons, to place them out in business, and thereupon afterwards, it was agreed that each of the sons should give her a bond with a surety, to secure the payment of an annuity of 401. per annum. That the bond in question was given in pursuance of that agreement, and for the considerations therein mentioned, and no memorial of it enrolled, wherefore the bond was void. Replication, that the bond was not given in pursuance of the agreement and for the considerations mentioned in the plea. The jury found that it was so given, in the terms of the plea: Held, that the plea did not show the annuity to have been granted for a pecuniary consideration, so as to bring it within the 17 G. 3. c. 26., and the plaintiff had judgment.

There were other pleas upon which issues were taken, and the jury not having found any verdict as to them, the Court awarded a venire de novo.

DEBT on a joint and several bond, given by the plaintiff in error and one T. M. Keats, conditioned to pay defendant in error an annuity of 40l. per annum for her life. Pleas, first, non est factum; second, that before the making of the bond, plaintiff having for several years carried on the wine and spirit trade, was on, &c., at, &c., induced, at the request of her sons, T. M. Keats, and J. Keats, to sell her said trade and business, and she did then and there accordingly sell the same, and the money arising therefrom, together with whatever money she possessed, amounting to 10007., she the said plain

tiff did then and there advance to her said two sons, to place them out in business; and that in consideration thereof, it was thereupon, afterwards, to wit, on, &c., at, &c., agreed by and between the said plaintiff and her two sons, that each of them should give her an annuity bond of 40l. per annum ; and that they should get some person or persons to join them by way of further security for the punctual payment of such two several annuities; and the said defendant further saith, that, in pursuance of the said agreement so made as aforesaid, he the said T. M. Keats and the said defendant, as security for the said T. M. Keats, as aforesaid, afterwards, to wit, on the same day and year last aforesaid, at London aforesaid, made and sealed, and as their act and deed delivered to the plaintiff the *said writing obliga[*70 tory in the said declaration mentioned; and the said plaintiff then and there accepted and received the said writing obligatory, with the condition thereunder written, of and from the said T. M. Keats, and the said defendant, in pursuance of the said agreement, and for the consideration aforesaid; and the said defendant further saith, that no memorial of the said writing obligatory in the said declaration mentioned was inrolled in the High Court of Chancery within twenty days of the execution thereof, according to the directions of a certain act of parliament made and passed in the seventeenth year of his late majesty King George the Third, whereby the said writing obligatory in the said declaration mentioned is null and void. Replication; that the said defendant did not deliver the said writing obligatory, nor did the said plaintiff accept the same in pursuance of the said agreement, and for the consideration in the said second plea mentioned, in manner and form as the said defendant hath above thereof in that plea alleged. As to the second issue within joined between the parties, the jury found that the said defendant did deliver the said writing obligatory, and the said plaintiff did accept the same, in pursuance of the agreement, and for the consideration in the second plea within mentioned, in manner and form as the said defendant hath within in that plea alleged. There were other pleas and issues joined on them, but as to them the jury found no verdict. Upon this finding the Court of Common Pleas gave judgment for the plaintiff, and a writ of error having been brought, the case was now argued by

Campbell, for the plaintiff in error. This annuity cannot be considered as given for natural love and affection, for the Court must take that to have been the consideration which is stated in the plea, and which has [*71 been found by the jury, viz. the money advanced by the plaintiff below to her sons. The only question is, whether an antecedent debt is such a pecuniary consideration as is contemplated by the 17 G. 3. c. 26. There would be no difficulty in framing the memorial of such a consideration; for it seems to be much the same, whether the consideration is stated to have been money paid at the time of the grant or seven years before. The eighth section of the act is material, for that excepts out of the operation of the act several sorts of annuities; but the only exception which can now be relied on, is that of annuities granted without regard to pecuniary consideration. [Abbott, C. J. How does it appear that there was any antecedent debt due to Mrs. Keats, there is nothing to show whether she advanced the money to her sons by way of loan or gift. Bayley, J. If a parent advances money to a child, it is supposed to be by way of gift.] In ordinary cases, if it is said, that A. advanced 1000l. to B., that is sufficient to show a debt, and here it cannot be said that the annuity was granted without regard to pecuniary consideration, for the jury have found that it was in pursuance of the agreement. and for the consideration in the second plea mentioned. [Bayley, J. It has been held that even without the aid of the eighth section voluntary annuities would be out of the operation of the act.] In Crespigny v. Wittenoom, 4 T. R. 790, Hatton v. Lewis, 5 T. R. 639, and Horn v. Horn, 7 East 529, where it was so held, no pecuniary consideration appeared in the plea. Here such