SECTION II.

When Indentures of Apprenticeship are or are not exempt from Stamp Duty, and what is not a Public Parochial Fund.

THE 40 sect. of stat. 8 Anne, c. 9 (e), which imposed a duty on indentures of apprenticeship, expressly exempted from duty money given with apprentices put out at the common or public charge of any parish, or paid out of any public charity.

A voluntary annual subscription by divers inhabitants of a parish for putting out apprentice boys and girls brought up at a parish charity school, there being four trustees and a treasurer annually elected to manage the charity, who bound out poor children, was held to be a public charity within this act, although it was not permanent. The reason of the distinction between a public and private charity, being, that a private charity might be calculated to evade the act which a public one could not be supposed to be (ƒ).

A bequest to Clifton (where the testatrix resided) of 501., to be given as her brother thought fit, some of it to put out children apprentices, was held to be a public charity, although it was argued that it was a private charity, because it was left entirely to the discretion of the testatrix's brother, whether to put out apprentices with the legacy or not (g).

A binding with the consent of trustees of funds bequeathed for that purpose, though they do not execute, is exempt from duty (h).

(e) This act applies to indentures of apprenticeship made prior to the 10th October, 1804. The stat. 44 Geo. III. c. 98, and 48 Geo. III. c. 149, which made considerable alterations in these stamp duties, have been repealed by 55 Geo. III. c.

184.

(f) Rex v. St. Matthew's, Bethnal Green, Burr. S. C. 574, 1 Bott, 641, pl. 932.

(g) Rex v. Clifton upon Dunsmore, Burr. S. C. 697; 1 Bott, 641, pl. 933.

(h) Rex v. Quainton, 2 Maule & S. 238.

A pauper was bound apprentice by the trustees of a public charity. The master covenanted to find him meat, drink, apparel, washing, &c. Before the execution of the indenture, the father of the pauper, who was not a party to it, agreed with the master to find the pauper clothing and washing during the term, and he did so. It did not appear that the trustees were privy to this engagement. It was held that the indenture did not require to be stamped, because either the agreement by the father to provide clothes was not a thing secured to be given for the benefit of the master, within the stat. 55 Geo. III. c. 184 (i); or assuming that it was, then it was void as being a fraud on the trustees, who had bound out the apprentice on the faith that the master would provide clothes (j).

Where an apprentice, who had been bound by the trustees of a charity, in consideration of a premium paid by them, was assigned by the original master to a new master, in consideration of a premium paid by the new to the old master, it was held that the assignment, which was made without the privity or concurrence of the trustees of the charity, was not exempt from duty. By an indenture, in 1821, not stamped, a party was bound apprentice to a trade for seven years, at a premium of 151. stated in the indenture to be paid to the master by the treasurer, appointed according to

(i) The stat. 55 Geo. III. c. 184, schedule part 1., tit. Apprenticeship, which imposes certain duties on indentures of apprenticeship, in respect of money or any matter or thing paid or given, or secured to be paid or given, for the use or benefit of the master or mistress, with or in respect of an apprentice, contains the following exemptions from all stamp duties: "Indentures, or other instruments for placing out poor children apprentices, by or at the sole charge of any parish or township, or by or at

the sole charge of any public charity, or pursuant to the act of the 32nd year of his majesty's reign, (32 Geo. III. c. 57) for the further regulation of parish apprentices. And all assignments of such poor apprentices, provided there shall be no such valuable consideration as aforesaid given to the new master or mistress, other than what may have been or shall be given by any parish or township, or by any public charity." (j) Rex v. Aylesbury, 3 B. & Adol. 569.

the testator's will (k) for the purpose of annually binding out poor apprentices; the premium was paid out of the rents of the trust estates, and the indenture was prepared by the clerk to the charity, and paid for by the charity. The master, at the request of the apprentice, after he had served about three years and a half, agreed to give to another master of a different trade, who agreed to take him for the remainder of the term, 67. as part of the 157. paid as a premium on the original binding. Neither the trustees nor the treasurer of the charity were parties to such agreement.

On a question whether the indenture required a stamp, either originally or upon the apprentice's changing his service, it was held, that the object of the will was, that every thing relating to the apprenticeship should remain in the hands of the trustees. A new arrangement was made both as to the service and premium, to which the trustees were no parties. Whatever exemption, therefore, belonged to the transaction originally, it was taken away when the master stood by himself, and a transfer took place with which the charity had nothing to do (l).

(k) John Norman, by his will, dated 19th February, 1720, devised certain estates to trustees and their heirs, upon trust (at certain intervals after the testator's death) to put to school, and at the age of fifteen to bind out apprentice to some trade, a son of some one of his or his first wife's relations, until the whole number of boys together in being, that should be thus put to school and provided for, should amount to thirty. And the testator directed, that as often as there should be a deficiency of the descendants of his or his first wife's relations, the trustees should put to school and place out apprentice, a son or sons of some inhabitant or inhabitants of Beer Street ward, or Upper Conisford ward, in Norwich,

or of the parish of Catton in Norfolk ; and the testator directed that at the end of sixty years after his decease, the number of boys should be increased by two, three, or four in a year, until it reached 120 of his or his said first wife's descendants, if they could be known or made out by his said trustees; and if not, of such others as aforesaid, out of Beer Street or Conisford wards, and Catton, if enough were to be had; if not, out of the neighbouring parishes in Norwich, at the discretion of his trustees; such children of strangers to be chiefly of such parents as had been reduced by losses, and had paid to church and poor.

(1) Rex v. Inhabitants of Fakenham, 4 Nev. & Mann. 553.

his son.

Money given by will for binding out apprentices is not a public parochial fund within the stat. 56 Geo. III. c. 139, s. 11 (m). Lands were devised for the relief of the poor of H., one half of the revenue to be employed for the relief of widows, the other half towards binding out apprentices. The rents were received by the churchwardens, and not mixed with the poor's rates, but kept in a distinct account. A parishioner of H. not receiving parish relief, applied to the churchwardens to provide him with means of apprenticing The son was apprenticed, and the churchwardens paid the premium, costs of the indenture, and expense of clothing the apprentice, out of the charity fund; it was held, that it was not an indenture by which an expense was incurred by public parochial funds within the statute 56 Geo. III. c. 139, s. 11, and therefore not void for want of the approval of two justices according to that act. And in a similar case, where lands were devised to the churchwardens and overseers of L. and their successors, upon trust, to apply the rents towards educating twenty poor children, and a part thereof yearly towards apprenticing eight of such children, to be chosen out and allowed by the said churchwardens and overseers, and the principal inhabitants; it was held, that the last was not a public parochial fund within the meaning of that act. Lord Tenterden, C. J. in deciding the

(m) The stat. 43 Eliz. c. 2, s. 5, empowers the churchwardens and overseers, or the greater part of them, by the assent of any two justices of the peace, to bind out poor children apprentices where they shall see convenient, &c.

The 56 Geo. III. c. 139, s. 11, after reciting that the salutary provisions of the above act are frequently evaded in the binding out of poor children, and the premium of apprenticeship or a part thereof is clandestinely provided by parish officers, who are thus enabled to

bind out many poor children without the sanction of the justices of the peace, enacts, "that no indenture of apprenticeship by reason of which any expense whatever shall at any time be incurred by the public parochial funds, shall be valid and effectual, unless approved of by two justices of the peace under their hands and seals, according to the provisions of the said act and of this act." See Rex v. St. Paul's, Exeter, 10 B. & C. 12; Rex v. Mattishall, 8 B. & C. 733.

case on general principles said, "in one sense, according to some decisions, the funds in both these cases are funds of public charities, because the bequest is general, and does not designate the individuals to be benefited. In another sense, they are parochial also, because they are left for the benefit of persons belonging to the respective parishes. Still the question is, in each case, whether the money be that of a public parochial fund. His lordship thought the case not within the mischief contemplated by 56 Geo. III. c. 139, s. 11. There is no clandestine appropriation of monies of the parish. The funds in question cannot properly be so called, in respect of the purpose for which they are collected, or the manner in which they are raised, since they are not contributed by the inhabitants of the parish. I think a public parochial fund must be one so contributed, or which is applicable to the general purposes of the relief of the poor. Estates devised for the relief of the poor generally, would come under this description; but in each of these cases there is a fund left by the bounty of an individual for a certain specified purpose, that is, for the benefit of a particular class of persons. It is not meant to go in relief of the general parish fund, or if so, only to a moderate extent. It does not appear that the intention was to relieve persons actually burdensome to the parish; there might be persons unable to bind out their own children, and therefore objects of this charity, who yet did not require parochial support, and in such cases the fund would be no relief to the parish. It appears to me also, that the donors in these cases never intended the objects of their bounty to be under the control of the justices of the peace, but that the charity should be, in the one case, at the disposal of the churchwardens, in the other (as respects apprentices), at that of the parish officers and principal inhabitants” (n).

(n) Rex v. Inhabitants of Halesworth, 3 B. & Adol. 717; see Rex v. St. Peter, Herefordshire, 1 B. &

Adol. 916; Rex v. Stoke Damarel, 1 Mann. & R. 458; S. C. 7 B. & C. 563.