1822. The KING against The Inhabitants of on which he might or ought to have in him by virtue of the said indenture. And the said John Greasley covenanted with the said Thomas Dalby, that he, the said Samuel Blockley should, notwithstanding any thing to be done by Greasley during the said term of years, well and years, well and BARLESTON truly serve the said Thomas Dalby as his master, &c. Provided, that the said Thomas Dalby shall well entreat and use him, and learn him the craft, mystery, and occupation of a frame-work knitter; and should also allow him sufficient meat, &c. which the said Thomas Dalby agreed to do in consideration of the services of the said apprentice; and also, the sum of 5l. agreed to be paid by Greasley to Dalby, being the said sum of money, which he, the said John Greasley received with the said apprentice, from the churchwardens and overseers of Heather, on their putting and placing him, the said Samuel Blockley, apprentice to the said John Greasley, It was objected by the respondents, that this assignment was not made under the 32 G. 3. c. 57. with the consent of two magistrates in writing; and therefore, was not an instrument under which a settlement could be gained. The appellants contended, that it was a valid instrument to confer a settlement, and cited the 56 G. 3. c. 139. s. 9. which passed subsequently to the assignment. The case was argued on a former day by Phillipps and Dwarris, in support of the order of sessions. This was not a valid assignment of the ap prentice not having been made with the sanction of two justices. The 32 G. 3. c. 57. s. 7. provides, that it shall be lawful to make assignments in writing, of parish apprentices by consent of two magistrates. And this is compulsory, it being for the benefit of the apprentice, that a controul of this sort should be exercised. It is argued, 1822. The KING against The Inhabitants of BARLESTON. 10 argued, that 56 G. 3. c. 139. s. 9. shews that this is not the true construction, but that there might be valid assignments not in writing, and not with consent of two justices. But this is easily explained; for the 9th section of 32 G. 3. c. 57. provides, that the 7th section shall not extend to cases where the premium given exceeds 51. The 56 G. 3. c. 139. s. 9. extended the provision to all cases, whether the premium was more or less than 5. The two clauses are therefore quite consistent. But, secondly, this is not good as a consent. For it was given alio intuitu, and that which is not valid as an assignment cannot be made good as a consent. G. W. Marriott and Simons, contrà. assignment. The 32 G. 3. c. 57. s. 7. This was a good only extends to cases of apprentices, whose masters being compellable by virtue of 8 and 9 W. 3. c. 30. s. 5. to take more than is convenient to them, may be forced to assign such apprentices over to other persons. But this apprentice was not in that situation. There are many instances in which cases of parol assignment have come incidentally before the Court without objection; yet all these cases would have been wrongly determined if this be correct. The 56 G. 3. c. 139. s. 9. was passed for the very purpose of correcting this evil, and shews by its prohibition of such assignments in future, that theretofore they had been valid. But secondly, at all events this amounted to a consent by the first master, that the apprentice should serve the second. Here, he clearly knew and consented to the particular service. In what form that consent be given is immaterial, if in fact a consent be given. A settlement was therefore gained by the latter service, and the order of sessions is wrong. Cur, adv. vult. And And now, on this day the judgment of the Court was delivered by ABBOTT C. J. We are of opinion that the pauper gained a settlement in the borough of Leicester, and, consequently, that the rule must be made absolute for quashing the order of removal, and the order of sessions confirming the same. The assignment of the apprentice and the service to his new master, were prior to the prohibitory statute 56 Geo. 3. c. 139, and, therefore, are not affected by it. The prior statute 32 Geo. 3. c. 57, s. 7. is not a prohibitory but an enabling statute. Before that statute, a master could not discharge himself from the obligation to maintain a parish apprentice, by assigning him to another person, nor were the apprentice and the new master subject to the ordinary jurisdiction of the justices, with respect to masters and parish apprentices. This appears by the preamble to the section, and then the act proceeds with certain enactments, whereby if the terms are complied with, these inconveniences are remedied. If the terms are not complied with (and in the present instance they were not) the case is not within that statute; but it is to be considered, with regard to the law, as it stood before that act was passed. And so considered, although the assignment may be for many purposes inoperative, yet it manifests a consent of the first master to a service with the second, and renders that service a service under the original binding. This is established by the cases of Rex v. The Inhabitants of East Bridgeford (a), and Rex v. The Inhabitants of St. Petrox. (b) In the first (a) Burr. S. C. 153. 2 Bott. 407. S. C. (b) Ibid. 248. 1822. The KING against The Inhabitants of BARLESTON. of 1822. The KING against The Inhabit. ants of BARLESTON. of those cases, the widow of the first master, who was of Orston, without taking out administration to her husband, assigned the apprentice to one George, at Staunton, and George, afterwards, by parol, assigned him to one Baggaley, at East Bridgeford; and it was held, that he gained a settlement by the service at East Bridgeford, by reason of the consent. In the last of those cases the service, under the original binding, was in St. Petrox; and the first mistress indorsed the indenture, and delivered it up, together with her interest in the apprentice, to one Foale, of Stoke Fleming, and the apprentice, by a new indenture, to which the mistress was not a party, voluntarily bound herself to Foale, and served him at Stoke Fleming; and the Court held, that though an assignment of an apprentice (except by custom in London) cannot strictly be made; yet, as this assignment was with the assent of the mistress, the service under it would be good, for the purpose of conferring a settlement; for the servitude continued under the first binding. And these cases, and some others determined upon the same principle, appear to have been recognised by the Court, in the case of The King v. The Inhabitants of Christore (a), in which case the first master had not assigned the apprentice, but had taken upon himself to bind her out anew, with her consent, to another person, by a new indenture of apprenticeship; and the Court, on that account, thought that the service to the second master could not be considered as a service under the original indenture. Order of sessions quashed. (a) 11 East, 95. 1822. DOE on the Demise of JOHN GILLARD against EJECTMENT for freehold lands, situate in the parish of West Alvington, in the county of Devon. At the trial, before Graham B., at the Devon Summer assizes, 1821, a verdict was found for the defendant, subject to the opinion of the Court on the following case: 4., at the time of making his will, was seised in fee of certain freehold and leasehold premises, and, amongst the rest, of a dwelling house, which he in habited, in the parish of D.; and six acres of at land, situate in his the parish of S., a mile dis and seventy John Gillard, the lessor of the plaintiff, was the heir at law of Richard Gillard, his uncle, deceased, who, the time of making his last will, and at the time of death, was seised in fee-simple of several freehold and tant from the leasehold tenements; that is to say, of a certain freehold village of B.; tenement, consisting of a dwelling-house and garden, acres of leasewith the appurtenances, called Greenhill; two other dis--and near the village of B.; tinct freehold tenements, the one consisting of three and fifty-eight cottages and gardens, with the appurtenances; and the hold land, and other of four cottages and gardens, with the appur- land in the tenances; and a small leasehold garden near to the parish of W. tenement, called Greenhill; all situate in the parish of Dodbrooke, in the county of Devon; six acres of land, acres of free some leasehold A., at the time of making his will, resided in the dwelling house, and had in his own oc cupation all the land in the parish of W., the freehold lands in the parish of S., and leasehold lands near the village of B.; but the freehold lands in the parish of D. were in the occupation of tenants. Before the making of the will, A. had contracted to sell all the lands in the parish of S., and the leaseholds near the village of B. The amount of A.'s debts at the time of his death exceeded his personal property. A., shortly before his death, made a will as follows: "I direct my debts, legacies, and funeral expenses, to be paid; with the due payment whereof I charge my real estates. I give to my nephew, T. G., 700., to be paid by my executor; and to my nephew, J. G., (the heir at law) 201., to be paid by my executor; and, lastly, I constitute R. G. my sole executor of all my lands for ever, and all my leasehold property here or at B., or money that shall become due for the same, paying certain annuities thereout by half-yearly payments:" Held, that by this will the executors took a fee in the freehold lands in the parish of W. VOL. V. 3 F situate |