the matter to stand over in order to await the expected event. But nothing of that sort having occurred, the case was now called on again in the peremp tory paper; when

Law again renewed his former arguments.

Lord KENYON, C. J. We ordered this matter to stand over, not because we had any doubt upon the law, but to afford time to the plaintiff to get relief elsewhere. But however much it were to be wished that an ad valorem stamp would suffice in these cases, yet till the legislature so declare it, no other than the particular stamp appropriated by the law to the particular instrument can be deemed sufficient. The words of the stamp acts are express, and can admit of no other interpretation; and therefore it cannot make any difference in this case, that the stamp used was larger than was required, or was applicable to the same purpose.

LE BLANC, J. The ground of objection was truly this, that at the time when this note was made there was no such stamp in existence as a nine-penny stamp for a promissory note.

The other Judges assenting,

Rule absolute(1).

Lord KENYON then observed, that as there were other general counts in the declaration, if the plaintiff could give other evidence of a consideration paid by him to the defendant, he would not be concluded from recovering by the fact of the defendant's having given this imperfect promissory note for it(a).

The King v. The Inhabitants of Crediton.

1 East, 59. Nov. 19, 1800.

Where the master of an apprentice told him "that he had no further employment for him, and he might go where he pleased," and the apprentice hearing of another master was going to him, and being met by his original master, and asked where he was going, answered that he was going to U., to which the master replied " he might go there or where he pleased;" held this was not such a particular assent of the original master to the service with U. as would enable the apprentice thereby to gain a settlement, tho' the indentures were not delivered up or cancelled.

TWO justices by an order removed William Milton, Mary his wife, and Mary their daughter, from the parish of North Tauton to the parish of Crediton, both in the county of Devon. The Sessions on appeal confirmed the order, subject to the opinion of this Court on a case stating; That William Milton, the pauper, was bound apprentice to Andrew Matthews, whom he

(1) Vide Taylor v. Hague, 2 East, 414. The King v. The Inhabitants of Keynɛham, 5 East, 309.

(a) Where a promissory note had been given for money lent, but when produced in Court was unstamped; Lord Kenyon, C. J. permitted the plaintiff to recover on a common count for money lent, by proving that when the money for which the note had been given was demanded of the defendant, he acknowledged the debt. Tyle v. Jones, Sittings at Westminster adjourned to 29th of October 1788, So in Alves v. Hodgson, 7 Term Rep. 241, the Court held, that the plaintiff could not recover upon a written contract for payment of wages nade in Jamaica, which by the laws of that island was void for want of a stamp; yet that he might recover upon a count for a quantum meruit, because the written contract could not be received in evidence. Yet where the defendants, who had advanced money upon the security of a ship at sea, took an absolute conveyance of the property, which afterwards turned out to be defective and void by reason of its not being conformable to the statute 26 Geo. 3. c. 60. s. 17. directing such transfers of property to contain certain particulars; the Court held that the vendees could not retain the possession of the ship, which they had seized upon her arrival, by resorting to the general lien, which the possession of the grand bill of sale might otherwise have conferred on them; but that they were liable in trover brought by the assignees of the vendor who had in the mean time become a bankrupt. Rolleston v. Hibbert, 3 Term Rep. 406. [Smith v. Smith, 2 Johns. Rep. 235.]

served above 40 days in the Parish of Crediton. Matthews failing in business told the pauper he had no further employment for him, and he might go where he pleased. Afterwards, and before leaving his master, one Haydon came to inform the pauper that one Underhill, who wanted a boy, was at an inn in the neighbourhood of his master's house, and that he should go to the inn. As the pauper was going out of the house, his master met him, and asked him, where he was going? The pauper told him he was going down to Underhill. Matthews said " he might go there or where he pleased.' Thereupon the pauper left Matthews's house, and went and hired himself and lived with Underhill above 40 days in the parish of Sampford Courtenay, but no communication appeared to have taken place between the original master and Underhill. The question submitted by the sessions was, Whether this were such an assent of the original master to the apprentice serving Underhill as enabled the apprentice to gain a settlement in Sampford Courtenay by his service with Underhill there.

Gibbs and Holland, in support of the order of Sessions, contended that this was the case of a general licence from the master to the apprentice to serve whom he pleased. Neither party considered the indentures as subsisting, and consequently no particular assent to the service with Underhill could have been in the contemplation of the master: Neither did the answer import any such assent. It meant no more than that the master no longer considered the pauper as his apprentice, and he might go where he liked. The case then falls within the principle of the case of R. v. Sandford, 1 Term Rep. 281. There the indentures still subsisted in point of law, because the pauper was under age, and being a parish binding, it could not be put an end to without the assent of the parish officers; but the master having delivered them up, considering them as at an end, the Court held that the apprentice did not gain a settlement as such by serving another master, though at the recommendation of his original master; which was stronger evidence of assent to the ticular service than exists in the present case. The Court then desired to hear the counsel for the appellants.

par

Clapp and East, contra, contended that the pauper gained a settlement by his service with Underhill under the indentures, by the consent of the origi nal master. A particular leave is not inconsistent with a prior or concomitant general leave. It is clear that the apprenticeship still subsisted in point of law notwithstanding the general leave to the apprentice to go where he pleased, the indentures not having been either cancelled or delivered up; as in the case of R. v. St. Luke's, Burr, S. C. 542, and that class of cases(a); nor any consideration paid for the giving them up, as in R. v. Harberton, 1 Term Rep. 139. The master might have recalled this general leave at any time, and insisted upon the service of his apprentice. His subsequent assent to a particular service operates as such recall, at least pro tempore. Here was a particular assent to go and live with Underhill, though at the same time the master said he might go wherever else he pleased. A mere knowledge by the master of the particular service will not enure as a consent, but this is a previous permission to serve a particular person by name. The case of the King v. Sandford is distinguishable from the present; for there the indentures were actually delivered up, which rebutted any idea of a subsequent particular assent to the service with another master; and such was considered to be the ground of that decision in R. v. The Holy Trinity in the Minories, 3, Term Rep. 607. But the mere circumstance of a prior general leave has never been considered as an objection to a subsequent particular leave as in R. v. Fremington, Burr. S. C. 416. The case of Tavistock v. Kelly, Burr. S. C. 578. 1 Blac. Rep. 635, S. C. is in point to shew that an assent to a particu lar service may operate to give a settlement though accompanied with a general

(a) Vi. R. v. Titchfield, ib. 511, and R. v. Notton, ib. 629.

leave to serve whom the pauper pleased. There the original master, when applied to by one Mason to know whether it were with his own consent that the pauper should live with him, answered, " with all his heart he might live with Mason or anybody else, provided he performed his agreement with him;" (which agreement was to pay him a guinea a-year during the remainder of the apprenticeship). This was holden to be a particular assent to the service with Mason, So in R. v. Bradninch, Tr. 21 Geo. 3. Const. 594, leave was first given to the pauper to go and serve whom he pleased, notwithstanding which, after the pauper had entered into another service, the master meeting him, and telling him "it was a very good place for him, and he hoped he would continue in it," was holden to be such an assent to the particular service as enabled the pauper thereby to gain a settlement. Though neither in that case any more than in the present was the assent of the first master communicated to the second.

Lord KENYON, C. J. The service with Underhill was not a prosecution of the service of the original master. Some of the cases upon this subject have been carried to a greater degree of refinement than might be desirable if they were to be decided again de novo; but we are to be governed by the general principle resulting from them, and not by particular expressions which vary in every case. It would perhaps have been better to have confined the power of gaining a settlement to a service with the original master. The case of the King v. St. George's Hanover Square, Burr. S. C. 12, first broke in upon that line, and determined that an apprentice serving another by the consent of the original master might thereby gain a settlement: from thence has ensued such a train of decisions as it is difficult to follow; however the general principle of them all is to be found in the King v. Austrey in Burr. S. Č. 441. where Lord Mansfield said, that in order to gain a settlement by the apprentice serving another master, there must be "an express and explicit leave and consent given by the master to the particular service," so as to be considered as a service of his master under the indenture ;" and not, as he observed in that case, leave intended to be quite general;" or as here a general quitting of the service and leave to go where the pauper pleased. Here the master first tells the pauper he had no longer any employment for him and he might go where he pleased, and then somebody having sent for the pauper, he tells his master, on being asked where he is going, that he is going to Underhill, on which the master repeats in effect what he had before said, that he might go there or where he pleased; meaning that he no longer looked for his service or took any concern how he disposed of himself.

66

6 a

GROSE, J. There must be a particular consent of the original master to the service with another in order to give a settlement. In the case of the King v. The Holy Trinity in the Minories, there was a particular recommendation to a particular service, which the Court held sufficient for that purpose. Whether there be such a particular assent of the original master to the subsequent service is more a question of fact than of law(a), and here the Sessions have in effect negatived that fact by finding that the pauper gained no settlement by the service with the second master.

The other Judges agreed that the conversation stated did not import an assent by the master to the particular service; but was in effect no more than repeating what he had at first said, that he had no further occasion for the pauper, and he might go where he pleased.

Order of Sessions confirmed.

(a) Vide post. R. v. The Inhabitants of Shebbear, p. 73.

Davison and Another v. Gill.

1 East, 64. Nov. 21, 1800.

An order made by justices of peace under the st. 13 Geo. 3. c. 78. s. 19. for stopping up an old foot-way and setting out a new one, must follow the form prescribed in the schedule annexed to the act, and set forth the length and breadth of the new foot-way; otherwise it is no answer to a justification of a right of way pleaded to an action of trespass quare clausum fregit brought by the owner of the soil over which the old way led. The statute requires, that the form set forth in the schedule "shall be used on all occasions, with such additions and variations only as may be necessary to adapt it to the particular exigency of the case." Under these words a material variance from the form prescribed is fatal, and may be taken advantage of in a collateral proceeding.

TO trespass for breaking and entering the plaintiff's close called Beck Meadow, in the parish of Arnold in the county of Nottingham, the defendant pleaded the general issue, and a justification of a public footway over the said close; upon which issues being joined, the cause was tried at the last assizes at Nottingham. It was admitted that the defendant used the road mentioned in the pleadings subsequent to its being turned as hereafter stated: and the jury found a verdict for the plaintiffs subject to the opinion of this Court upon the following case. The road in question time immemorially has been used as a public footway leading from the town of Arnold in the parish of Arnold to the town of Nottingham through and over the said close of the plaintiffs' called Beck Meadow, until the same was stopped up under the authority of two justices at a special session holden for that purpose on the 9th of March 1798, pursuant to a notice under their hands and seals dated 24th of February preceding; whose orders and proceedings have been duly inrolled by the clerk of the peace, and are as follows: "To his majesty's justices of the peace for the county of Nottingham, to be assembled at their special sessions to be held, &c. within the parish of Arnold in the said county of Nottingham, on Friday the 9th of March 1798. Whereas there is now a certain footway or road leading from Arnold aforesaid towards Nottingham lying and being through certain lands and grounds called the Beck Meadow and Beck Meadow End Closes, within the said parish of Arnold, belonging to Sarah Coape Sherbrooke gentlewoman, and Mrs. Mary Lomas and her said son Samuel Lomas respectively, and described in the plan hereunto annexed(a), " Old Foot Path." And whereas it would be more commodious to the public to have the said foot-yath or road diverted, or turned, and stopt up, and to have the foot-way or road from Arnold aforesaid toward Nottingham to go in future on the common highway leading from near Arnold Mill into the turnpike road near thereto leading towards Nottingham, and from thence over part of a close or parcel of land belonging to the said S. C. Sherbrooke nearly opposite to Daybrook turnpike gate, and from thence along the said turnpike road leading towards Nottingham, as the same is now made convenient and commodious for people on foot, and described in the plan hereunto annexed New Foot Path," in lieu of and in exchange for the said old foot-way or road; Now we the said S. C. Sherbrooke, Mary Lomas and Samuel Lomas do hereby consent and agree, and also request, that the said old foot-way or road may from henceforth, and at all times hereafter, for ever, be wholly stopt up and discontinued to be used as such, and that the footway or road from Arnold towards Nottingham aforesaid may

(a) There was a map of the new and old path annexed to the case, according to a certain scale as therein marked of a quarter of an inch to ten yards, whereby it appeared that the path was turned from the old direction across the fields, into the turnpike road which led round the same fields; from which road the path originally led, and into which at some distance it came again.

go in future on the said new foot path above described in lieu of and in exchange for the said old foot-way or road. And each of us do hereby consent. and agree that such new foot-way or road, which is now put into a good state as such, shall or may at all times hereafter be used and remain as a footway or road, and become public to all intents and purposes whatsoever; and be maintained and repaired by us and the owners of the said Beck Meadow and Beck Meadow End Closes for the time being, in proportion to our respective rights and interests in and upon the same; upon condition that the said old foot-way or road over the said lands or grounds belonging to us respectively be afterwards vested and become wholly and entirely the property of us, according to our respective estates and interests therein. In witness whereof we have hereunto set our hands and seals this 7th day of March, S. C. Sherbrooke, M. Lomas, S. Lomas. Witness J. Falkner.

Nottinghamshire. We the Reverend James Bingham and Charles Wylde, clerks, two of his majesty's justices of the peace for the said county of Nottingham, at the special sessions within mentioned, having upon view found that the within mentioned old foot-way or road-way may be diverted and turned as within expressed and requested, and having viewed the new foot-way or road within mentioned, which we do hereby certify is completed and put into good condition and repair, do hereby order that the said old foot-way or road be diverted and turned in and upon the said new footway or road, in such manner as within particularly mentioned; and do order and direct that the said old foot-way or road shall from henceforth be stopped up or inclosed by the respective owners of the lands or grounds, through which the same hath hitherto gone; and all the land and soil thereof be vested in and become their property respectively, according to their respective estates and interests therein. Given under our hands and seals this 9th day of March 1798. J. Bingham, Charles Wylde.

Agairst this order there was an appeal to the quarter sessions, which confirmed the order of the justices. The turning of the said new road over the close belonging to the said S. C. Sherbrooke nearly opposite to Daybrook turnpike is beneficial to the public. The question for the opinion of the Court is, whether the plaintiffs are entitled to recover; if they are, the verdict for the plaintiffs to stand; but if not, then a nonsuit to be entered.

This case was first argued in last Trinity term by Clarke for the plaintiff, and Dayrell for the defendant, when the Court ordered it to stand over with a view to an accommodation between the parties; which ultimately did not take place.

The objections then urged to the order of the magistrates stated in the case were these(a); 1. That it did not state that the new way was nearer or more

(a) The st. 13 Geo. 3. c. 78. on which the objections were founded enacts, (s. 19.) That "when it shall appear upon the view of two justices of the peace, that any public foot-way, &c. may be diverted, so as to make the same nearer or more commodious to the public, and the owners of the lands through which such new foot-way, &c. is proposed to be made shall consent thereto, by writing under their hands and seals, it shall and may be lawful; by order of such justices at some special sessions, to divert and turn, and to stop up such foot-way, &c. and to purchase the ground for such new foot-way, &c. by such ways and means, and subject to such exceptions and conditions, in all respects, as herein before-mentioned with regard to highways to be widened or diverted. And where such foot-way, &c. shall be so ordered to be stopped up, and such new foot-way, &c. set out and appropriated in lieu thereof, as aforesaid, it shall and may be lawful for any person aggrieved by any such order, or proceeding, &c. to appeal to the next quarter sessions, &c. after such order made, upon giving notice, &c. which court is hereby authorized to hear and finally determine such appeal. And if no such appeal be made, or, being made, such order shall be confirmed by the said court, the said way may be stopped, and the proceedings thereupon shall be binding and conclusive to all persons whomsoever; and the new foot-way, &c. so to be appropriated and set out, shall be and for ever after continue a public foot-way, &c. to all intents and purposes whatsoever; but no stoppage of such foot-way, &c. shall be made, until such new foot-way, &c. shall be completed and put into condition and good repair; and so certified by