1787.

Per Curiam, The only way to call on a sheriff to return a writ is by a rule and process of the Court. The statute was The KING made for the ease and benefit of sheriffs. And if this mode of against JONES. desiring a return of a writ were to be allowed, it would be productive of numberless questions, as to what should be deemed a calling on the sheriff. But as this point had never been settled, the Court made the rule absolute without costs, even though it was for an irregularity.

Monday, Ref.

June 11th.

By the con. RULE calling on the defendant, who was town-clerk of the

stitution of

the corpora

don, a person

having served a seven years'

ship to a

town is en

freedom;

and by a

indentures

must be

the town

borough of Hedon in Yorkshire, to shew cause why a mantion of He damus should not issue, directing him to enroll the indentures of apprenticeship, by which John Briggs was bound an apprentice to John Burstall as a mariner, in one of the public books apprentice of the corporation of Hedon. It appeared from the affidavits freeman re- on which the rule was founded, that by the usage and constisiding in the tution of the borough of Hedon, all persons who have served titled to his apprenticeships for seven years to any freeman of the corporation resident within the town are entitled to the freedom of the bye-law the corporation. That by a bye-law of the corporation, made in February 1752, it was enacted, that no apprentice should be enenrolled by titled to the freedom of the corporation, unless he should within clerk within four months after the date of the indentures of apprenticeship cause the indentures to be enrolled by the town-clerk in one of the public books belonging to the corporation. It was likewise An apprentice who is stated that Burstall was a freeman of and resident in the town of bound to a Hedon, and had served the offices of bailiff of the corporation in sident only 1782, of alderman in 1783, and of mayor in 1784. That on occasional ly, and the 1st of May 1786, John Briggs was bound apprentice to John whose ser- Burstall for seven years; and that on an application to the deperformed fendant within the four months to enroll the indentures, he had refused; assigning as a reason that Burstall usually resided entitled to at Kingston upon Hull, where his business was carried on, and dentures en- that Hedon was only his place of residence during some of the

four months from the date.

freeman, re

vice is to be

at another place, is not

have his in

rolled, nor

will the

Court grant

a manda

summer months.

Baldwin now shewed cause against the rule, and insisted that mus to the Briggs was not entitled to the freedom of the corporation. That town-clerk according to the true construction of the usage and bye-law only

for that

purpose.

those

The KING

against

those persons who served apprenticeships within the town and 1787. borough of Hedon were entitled to that privilege. And that the circumstance of the master's occasional residence in Hedon could not make any difference, since the business was entirely carried MARSHAL. on at Kingston, at which place therefore the service was performed. Chambre in support of the rule. The question is not upon the residence of the apprentice during the servitude, but where the master resided. By the ancient constitution of the borough, all persons who serve apprenticeships for seven years to any freeman resident within the town are entitled to the freedom of the corporation. Now in this case the master was a freeman of and resident within the town: and it is in respect of his freedom that the privilege is to be communicated to the apprentice. Then the bye-law cannot alter the ancient constitution. But it is to be observed that even according to the bye-law the inrolment is to be made within four months after the execution of the indentures; and it cannot be known at that time where the apprentice will reside during the time of the apprenticeship; which shews that the apprentice is entitled to the effect of the present application, since he is bound an apprentice to a person who is resident within as well as a freeman of the borough. At all events the question respecting the title of the apprentice to the freedom of the corporation will be open to be discussed on some future occasion, after he shall have served his apprenticeship: but the present motion is only to have the indentures inrolled, in order to give him an opportunity of trying that question hereafter. And if this rule be discharged it will be conclusive against him for ever; but if granted it cannot be conclusive in his favour. But

The Court were clearly of opinion that, as the trade was carried on at Kingston, and the service was performed there, the apprentice was not entitled to have this rule made absolute. That the privilege sought for was in respect of the benefit which the borough of Hedon might receive from the service of the apprentice; whereas in the present instance the benefit to be derived from the service of the apprentice could only be received by the inhabitants of Kingston. That it was a kind of fraud upon the bye-law of the corporation of Heden; and that it was evident from the indentures that the service under them could not be performed at Hedon, which is an inland town, because Briggs was bound apprentice as a mariner.

1787.

Per Curiam, The only way to call on a sheriff to return a writ is by a rule and process of the Court. The statute was made for the ease and benefit of sheriffs. And if this mode of against JONES. desiring a return of a writ were to be allowed, it would be productive of numberless questions, as to what should be deemed a calling on the sheriff. But as this point had never been settled, the Court made the rule absolute without costs, even though it was for an irregularity.

Monday, June 11th.

By the con. stitution of the corpora

don, a person

having

served a

ship to a

town is en

RULE calling on the defendant, who was town-clerk of the borough of Hedon in Yorkshire, to shew cause why a mantion of He damus should not issue, directing him to enroll the indentures of apprenticeship, by which John Briggs was bound an apprenseven years' tice to John Burstall as a mariner, in one of the public books apprentice of the corporation of Hedon. It appeared from the affidavits freeman re- on which the rule was founded, that by the usage and constisiding in the tution of the borough of Hedon, all persons who have served titled to his apprenticeships for seven years to any freeman of the corporation resident within the town are entitled to the freedom of the bye-law the corporation. That by a bye-law of the corporation, made in February 1752, it was enacted, that no apprentice should be enenrolled by titled to the freedom of the corporation, unless he should within clerk within four months after the date of the indentures of apprenticeship cause the indentures to be enrolled by the town-clerk in one of the public books belonging to the corporation. It was likewise An apprentice who is stated that Burstall was a freeman of and resident in the town of

freedom;

and by a

indentures

must be

the town

four months

from the

date.

freeman, re

occasional

ly, and

vice is to be

bound to a Hedon, and had served the offices of bailiff of the corporation in sident only 1782, of alderman in 1783, and of mayor in 1784. That on the 1st of May 1786, John Briggs was bound apprentice to John whose ser- Burstall for seven years; and that on an application to the deperformed fendant within the four months to enroll the indentures, he at another had refused; assigning as a reason that Burstall usually resided entitled to at Kingston upon Hull, where his business was carried on, and dentures en- that Hedon was only his place of residence during some of the summer months.

place, is not

have his in

rolled, nor

will the

Court grant

a manda

Baldwin now shewed cause against the rule, and insisted that mus to the Briggs was not entitled to the freedom of the corporation. That town-clerk according to the true construction of the usage and bye-law only

for that purpose.

those

The KING

against

those persons who served apprenticeships within the town and 1787. borough of Hedon were entitled to that privilege. And that the circumstance of the master's occasional residence in Heden could not make any difference, since the business was entirely carried MARSHAL on at Kingston, at which place therefore the service was performed. Chambre in support of the rule. The question is not upon the residence of the apprentice during the servitude, but where the master resided. By the ancient constitution of the borough, all persons who serve apprenticeships for seven years to any freeman resident within the town are entitled to the freedom of the corporation. Now in this case the master was a freeman of and resident within the town: and it is in respect of his free. dom that the privilege is to be communicated to the apprentice. Then the bye-law cannot alter the ancient constitution. But it ist to be observed that even according to the bye-law the inrolment is to be made within four months after the execution of the indentures; and it cannot be known at that time where the apprentice will reside during the time of the apprenticeship; which shews that the apprentice is entitled to the effect of the present application, since he is bound an apprentice to a person who is resident within as well as a freeman of the borough. At all events the question respecting the title of the apprentice to the freedom of the corporation will be open to be discussed on some future occasion, after he shall have served his apprenticeship: but the present motion is only to have the indentures inrolled, in order to give him an opportunity of trying that question hereafter. And if this rule be discharged it will be conclusive against him for ever; but if granted it cannot be conclusive in his favour. But

The Court were clearly of opinion that, as the trade was carried on at Kingston, and the service was performed there, the apprentice was not entitled to have this rule made absolute. That the privilege sought for was in respect of the benefit which the borough of Hedon might receive from the service of the apprentice; whereas in the present instance the benefit to be derived from the service of the apprentice could only be received by the inhabitants of Kingston. That it was a kind of fraud upon the bye-law of the corporation of Heden; and that it was evident from the indentures that the service under them could not be performed at Hedon, which is an inland town, because Briggs was bound apprentice as a mariner.

1787.

Monday, June 11th.

Where a

ON

EDMONDSON against MACHELL.

Na motion for a new trial, Mr. Baron Perryn, before whom the cause was tried at the last assizes at Lancaster, reported new trial is that this was an action of trespass for assaulting and beating the plaintiff's niece, per quod servitium amisit. The niece lived with ground of a her aunt in Lancaster, as her servant; her mother lived in a dis

moved for

on the

misdirec

of law, if

the Court

see that justice has been done between

verdict, nor enter into

a discussion

of the ques

tion of law. [1 B. & P.

339. II

tion in point ferent part of the same county; and by the permission of the plaintiff, the niece went in the month of March last to see her mother; at which time the assault was made. The case proved on the part of the plaintiff was aggravated with many circumstances of ill-treatment (which were particularly related in the detail of the parties, they will not the evidence). Another cause stood next in the paper for trial, set aside the which was brought by the niece against the same defendant for the same assault. The counsel for the plaintiff declared their intention of not trying that cause, and withdrew the record. The defendant's counsel contended that the jury could only give damages in this cause for the loss of service; the plaintiff's counsel insisted on the contrary. The learned judge thought the aunt in this case stood in loco parentis; and as in actions brought by a father for deflowering his daughter, whereby he lost her service, large damages had been often given, he thought this case bore an analogy to that; and that the jury upon the whole of the case had a right to give such damages as they thought just, considering the situation and circumstances of the defendant, who was proved to be a captain in the militia, the qualification for which was 300l. a year. The jury after consideration found a verdict for the plaintiff, damages 300/.; with which the learned judge declared himself not dissatisfied.

East. 23.]

This application was made last term, on the ground of a misdirection to the jury. The defendant's counsel denied that they had entered into any compromise to permit the jury to take into consideration, in the measure of their damages, the injury which the niece herself had sustained, and which was the subject of the next action, in consideration of the plaintiff's counsel withdrawing the record in the next action. But it was admitted that the damages were not excessive according to the evidence then given, if the jury could take both the actions into their consideration at once.

After a question put this day to the plaintiff's counsel whether the niece would enter into a rule not to proceed in the action in which she herself was plaintiff, which was answered in the affirmative,

ASHHURST,