ry, subsequent to that of Hopewell. Under this head they cited Mod. 181, 3 Bac. 118, 577, 2 Blac. Com. 140, 141, Co. Lit. 135, 1 Comy. 356, 2 Ld. Ray. 281. The Counsel for Amwell contended-That notwithstanding the indenture should be defective, yet it was only voidable by the parties to it, and not by the parish, for which they cited 3 Burn's J. 324, 325, 384; they said a father might bind his child an apprentice, but not as a servant, Bur. Set. Cases, 657; that as to the computation of time, the rule was, you must include one day and exclude another, (a) and this rule would shut out Montgomery; that a year consisted of 365 days, and commenced on the day the pauper with his master moved into the township of Hopewell. Time being taken to look into the cases, in this term the court rendered judgment. KIRKPATRICK, C. J. and RoSSELL, J.-Were of opinion, that the order of the Sessions, affirming the order of the two justices, ought to be affirmed. PENNINGTON, J.-As I entertain a different opinion from my brethren, it is proper I should express my reasons for such opinion. It is admitted, that the pauper was settled by birth in Amwell: the question for this Court to determine is, whether from the facts stated in the case, he did not afterwards gain a settlement in Hopewell? And if he did, then whether he did not afterwards gain a settlement in Montgomery? It is contended by Amwell, that the pauper gained a settlement in Hopewell, by serving an apprenticeship of one year there. To gain a settlement in this respect, the pauper must have served an apprenticeship, under indenture, for the space of one full year, in Hopewell. Almost every requisite to constitute this service is denied, on the part of Hopewell, to exist in the present case. First, it is said that the instrument is not indented, and therefore, that [*] there was no indenture. In the first part of the reign of George the second, it was so adjudged, even in settlement cases, which adjudications gave rise to the 31 Geo. 2, curing the evil; and whether that statute is to be considered as extending to this State or not, I apprehend at this day, an objection arising from a defect of this kind, cannot be set up. Second, it is said that the instrument does not contain the word apprentice, and therefore a service under it was not an apprenticeship. If there was a substantial binding in every other respect, I should incline to get over this objection as too technical, yet I do not see very well how we are to get rid of the authorities. It is laid down in 4 Bac. 557, that an (7) S Halst. 303. 7b 205 apprentice must be retained by the name of an apprentice expressly, otherwise he is no apprentice, though bound; 1 Burns' J. 60, referring to Dalton's Justice, recognizes the same principle: the reason for this no doubt is, that there is a material difference between a servant and an apprentice. Third, it is said that the instrument does not contain any agreement that the pauper was to learn any art, trade or mystery, which every indenture of apprenticeship requires. It appears to me, that this is a fatal objection. When I look into the books to find the meaning of the word apprentice, I perceive that it is derived from the word apprendre, to learn, and that it is defined in the following words-"A young person, bound by indentures, to a tradesman or artificer, who, upon certain covenants, is to teach him his mystery or trade." It is truc, apprentices are not confined to tradesmen or artificers, husbandmen may take apprentices, but in doing of it, they covenant to learn them the art and mystery of husbandry. I take it to be essential to every legal indenture of apprenticeship, that the master or mistress must engage or covenant to learn the apprentice some trade, art or mystery; it is that which distinguishes it from menial service. We find in England young women are bound apprentices to learn the art and mystery of housewifery; to constitute an apprenticeship something is to be learnt; it is the characteristic mark of the service to be performed, [*] and there can be no apprenticeship without it. A fourth objection raised on the part of Hopewell is, that the pauper never signed, sealed, or delivered the instrument, but that this was only done by the father of the pauper and the person to whom he was bound. I am of opinion, that under our act of Assembly at least, this is also a fatal objection to the instrument, so far as it goes to constitute an apprenticeship; it is not the father that binds the apprentice, but it is the apprentice that binds himself, with the consent of its parent or guardian. This consent is properly required to prevent improvident acts of the infant. The parent or guardian may enter into covenants in the instrument to secure and indemnify the master, that will bind them, but these covenants are not the acts of binding; an indenture would be good without them. As to the question arising on the manner of computing time, so learnedly and ingeniously argued by the counsel on both sides, it is not necessary for me to give an opinion; and I am induced to decline doing so, as it may possibly affect the interest of the township of Montgomery, that township not being before the Court. I am of opinion, that both orders ought to be quashed. The orders of Sessions aflirmed. CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-JERSEY. SEPTEMBER TERM, 1808. GOLTRY & FALLOWFIELD vs. RUCKMAN. ON CERTIORARI. A state of demand is needless, if judgment be confessed. (a) THE plaintiffs in this Court were the defendants below, and voluntarily confessed a judgment before the justice for $82 20. The reason assigned for the reversal of the judgment was, that no state of demand had been filed with the justice; it was now urged that this was essentially requisite; that it ought to appear for what cause of action the judgment below was rendered, otherwise the defendants below would be exposed to another action for the same cause. BY THE COURT.-We cannot reverse a judgment voluntarily confessed, for this cause; a convenience would arise, even in this case, from having the cause of action set out in the proceedings below; but the defendants below should have seen to that before they confessed judgment. M'Donald, att'y for plaintiff. Judgment affirmed. [*] DOUGHERTY vs. ANDERSON. ON CERTIORARI. State of demand under timber act must state place, time and circumstances required in the act. (b) THIS was an action brought by Anderson, before the justice, against Dougherty, on the act to prevent the waste of timber. The following state of demand was filed: Oct. 22, 1807. Barney Dougherty to James Anderson Dr. To (a) S. P. South. 89. 7 Halst. 127. (b) S. P. next case. cutting and bearing away 12 trees, at 8 dollars, $96. The defendant did not appear before the justice; the justice examined one witness, and gave judgment for the plaintiff for $96. This judgment was objected to on the ground of the incompetency of the state of demand; that the name of the county or township where the land was situated on which the trees were supposed to be cut, was not set out, nor was the land so described, as that the present judgment could be pleaded to another action for the same cause; also, the state of demand ought to set forth, that the cutting the trees, &c. was without the consent of the owner; nor does it appear in what right the plaintiff below prosecuted, whether as a party injured, or as a common informer. THE COURT being of opinion that the state of demand was substantially defective, Reversed the judgment. Tucker, att'y for plaintiff. MATTHEWS vs. PEM BERTON. ON CERTIORARI. THIS was an action founded on the act to prevent the waste of timber. The state of demand was for $100, for thirteen penalties, which at eight dollars each, would [*] make $104. The justice tried the cause without a jury, and rendered judgment for $40. The name of the town where the land was situated was not named, or the land any way described. Judgment reversed. Elmer, att'y for plaintiff. BOZORTH vs. CRANMER. ON CERTIORARI. THE action below, was an action of trespass, brought on the following state of demand: The plaintiff comes into Court and pleads, that in the year of 1801, that Aaron Bozorth did wrongfully, and in the night season, take a cow from me without my knowledge, at that time, or consent, for which I prosecuted the said Bozorth, and obtained judgment for, before John Furman, Esq. and afterwards the said Bozorth did prosecute me before Moses Kimpton, Esq. in Mount-Holly, which appeared a malicious prosecution, by said Bozorth not filing no plea, nor attending the suit; and as the said Bozorth has had the judgments reversed by the Supreme Court, I the said William Cranmer, do plead to this Court for judgment for the loss of property and cash; that the above damages now will be proved to the Court. To the cow and cash I paid to ascertain the property, is $64 87, for which sum I pray judgment. WILLIAM CRANMER. 1 July, 1808. This cause was tried on the return day of the summons, by the justice without a jury, in the absence of the defendant below, and the justice rendered judgment [*] for the plaintiff below, Cranmer, for 864 47, with costs. One objection to the proceedings below, was the insufficiency and uncertainty of the state of demand, and on this ground the Court Reversed the judgment. Tucker, att'y for plaintiff. QUIMBY vs. GILMAN. ON CERTIORARI. Judgment for costs of both parties, error. THE judgment in this case was reversed, because the justice had rendered judgment in favor of the prevailing party below, for all the costs in the suit, as well his own as those of his adversary, and for more than two witnesses on one side. BOYLAN 28. DICKERSON, ON CERTIORARI. Assignor of scaled bill not liable for maker's non-payment. THIS was an action brought by the assignee of a scaled note against the assignor, on the ground, that after due diligence being used, the debt could not be collected against the maker of the note. BY THE COURT.-This action cannot be sustained; the principle is settled in the case of Garretsic v. Van Ness.* Judgment reversed. [*] SMITH vs. HARKER and HARKER. ON CERTIORARI. THE record below sent up by the justice, was in the following words: Daniel Harker and William Fairholm, Said Fairholm, confessed judgment for £11 19 0 debt, and 3s 9d costs. а Gave execution, Dec. 15, 1796. 25th November, 1799. Issued a scire facias against Peter Smith, to shew cause why execution should not issue against him, returnable 7th Dec, 1799; Peter Smith did not appear, and I entered judgment against him by default for $39 38 debt, and 66 costs. September 19, 1796. Execution issued March 7, 1800. It was moved in behalf of the plaintiff in certiorari to reverse this judgment, on the ground that the proceeding below *Ante. 20. Ib. S. P. 211, 1 South. 178. |