1812. GRAY against COOKSON 66 St. Nicholas in Ipswich, Burr. S. C. 91. and 2 Str. 1066., that the indenture was voidable only on this account, and not void. But it was further said by the plaintiff's and Another, counsel, that the indenture, so in its nature voidable, had been avoided by the plaintiff, the apprentice, before the conviction took place. And the fact of avoidance relied upon was an unstamped indorsement, signed by the plaintiff's master, but not sealed with his seal, made on the indenture of apprenticeship in the words following, that is to say, "I agree to cancel this indenture as against John Gray and Wm. Gray, his son, (i. e. the plaintiff,) provided the said W. Gray makes no engage"ment, or enters into any person's service in the town of "Newcastle-upon-Tyne: in such case this indenture to "remain valid, and the present agreement to be void. "As witness my hand this 17th of April 1809. Wm. "Spencer," (i. e. the master.) It appears by the evidence stated on the face of the conviction, that Wm. Gray the apprentice had made an engagement in the town of Newcastle-upon-Tyne, by setting up the trade there of a woollen draper. And the question is whether the fact last stated amounts to a breach of that agreement on the part of the apprentice which is contained in the proviso, and on the breach of which the indenture was to remain valid, and the agreement for vacating the same was to become void: in other words, whether the making an engagement in the town of Newcastle-upon-Tyne, by setting up the trade there of a woollen draper, (it not appearing on the face of the conviction to have been the trade carried on by Spencer the master,) be a making an engagement in the town of Newcastle-upon-Tyne, within the meaning of this proviso. The stipulation against making an engagement, as coupled with the context of en tering tering into any person's service in the town of Newcastleupon-Tyne, in plain sense imports an engagement of trade 1 1812. GRAY against COOKSON or business, and seems to be equivalent to a stipulation, that he should neither engage in any business himself, nor and Another. be employed in any as servant to another within the town of Newcastle-upon-Tyne. And if that be, as we think it is, the true meaning of the stipulation contained in the proviso, then was the indenture unavoided at the time when the absence commenced, which is the subject of the conviction. And according to the case of The King v. Evered, K. B. Trinity, 17 G. 3., with a MS. note of which I have been favoured, indentures, though voidable, cannot be avoided by merely doing that which is forbidden by, and in violation of them as long as they continue at all in force. In that case two justices had committed one Robert Collehall, an apprentice, to Shepton Mallett bridewell, for running away from his master. Amongst other objections to the commitment was this, that the binding, being only for 6 years, was contrary to the stat. 5 Eliz, c. 4. s. 26, which required it to be for 7 years at least; and that by s. 41. all indentures otherwise made are void. That in the case of The King v. The Inhabitants of St. Nicholas, Ipswich, (already referred to,) Lord Hardwicke had expressly adjudged that such an indenture was voidable by the parties. That the apprentice had in this case done every thing in his power to avoid the indenture, having left his master, and said he would live no longer with him under his control; and that it would be extremely hard that he should be subjected to punishment only for using that liberty and exercising those rights which the law gave him. Lord Mansfield, C. J. It has been adjudged that an infant may bind himself for his own benefit, and it is settled in the 1812. GRAY against COOKSON and Another. the case in Strange, that a binding for four years gives a settlement. Aston, Justice. Supposing the indentures voidable, I cannot conceive that the apprentice's running away can avoid them. Had he served regularly, and during such services declared his intention to depart, it might have been different. Here he would make use of his offence in order to avoid the punishment that attends it; but it is too late to do it before a justice when charged with a crime. Willes and Ashhurst, Justices, being of the same opinion on this ground, the rule for the apprentice's discharge would have been discharged, but for an objection to the frame of the commitment, which is collateral to the present question. Upon the authority of these cases, we are of opinion that the indenture of apprenticeship in this case was voidable only, and not void; and that it was not avoided by any act other than the act of delinquency on the part of the apprentice, which was the subject of the punishment in question; and which on the authority of the last-mentioned case, as well as the reason of the thing, is not available for the purpose of avoiding an indenture of apprenticeship. On these grounds, therefore, we are of opinion that the defendants, the justices, had by law the authority which they in fact exercised in this case, by a commitment under this conviction; and that they were therefore entitled to have been acquitted under the general issue pleaded by them. Rule absolute for entering a nonsuit. GRAHAM 1812 TH 66 GRAHAM and Others against WADE. The lease con Monday, Under a covenant by a te nant for the yearly rent, all taxes thereon being to him allowed; and payment of 80%. also that he would pay all additional rates on the premises, or on any additional buildings or improvements made by him; and a covenant by the landlords to pay all rates on the premises or on the te HIS was an action brought to recover two and a half year's rent of certain buildings and land demised to the defendant in the year 1800, for a term of 58 years, at an annual rent of 801. The demised premises consisted of one third part of a larger property, and at the date of the lease the entire premises were rated to all parochial and parliamentary taxes, and the taxes then further or payable for the whole were 607., of which the proportion for the demised premises was 201. tained a covenant for the payment by the defendant of 801. yearly rent, "all taxes thereon being to him allowed. "And also (the defendant) shall and will, at his own proper costs and charges, at all times during the con"tinuance of this demise, pay and discharge all such fur"ther or additional rates and taxes as shall or may be "assessed or imposed on the said hereby demised premises, " or on any additional buildings or improvements, which "he the said J. Wade, his executors, &c. shall or may "at any time during this demise erect, build, or make "on the premises hereby demised, or any part thereof." Also this covenant on the part of the lessors: "That they will at all times during the continuance of this "demise bear and pay all manner of rates, taxes, and "assessments whatsoever, which shall or may be rated 66 or assessed on the said demised premises, or any part "thereof, or on the said J. Wade, his executors, &c. in "respect of the said yearly rent of 801.; save and except as to such further or additional taxes or assessments "as may be assessed or charged on the said hereby de 66 66 nant, in respect of the said yearexcept such furly rent of 801 ther or addition al taxes as may be assessed on the demised premises; the tenant is bound to defray all increase of the old as well as any new rates beyond the proportion at mises were which the pre time of the deed, which was 201. in respect rated at the of the 80%. rent. 1812. GRAHAM against WADE. "mised premises." Since the year 1800 the amount of the rates and taxes payable in respect of these premises had considerably increased; and the question made at the trial, before the Lord Chief Baron, in Surry, was, whether the lessors, or the tenant, were to defray such increase. If the burden were to be borne by the tenant, he had not paid enough money into Court to cover the rent demanded: if by the lessors, they were not entitled to recover in this action. The plaintiffs insisted that the increased rates and taxes were payable by the defendant under his covenant to discharge all further and additional rates and taxes, that is, in extension of the old or addition of new rates and taxes beyond the proportion of the 207. rates and taxes assessed on the premises at the time of the demise, to which extent of 207. only he was to be allowed to deduct rates and taxes out of the 801. rent. The defendant contended that he was entitled to deduct out of the rent reserved the whole extension of the old rates and taxes existing at the time of the demise, though exceeding the 201., their amount at that time, and was only bound to pay any new rates or taxes which might be imposed upon the premises subsequently to that period. With this latter construction the Lord Chief Baron agreed; considering that, otherwise, this inequality would be produced in the situation of the parties, that the landlords would have all the benefit of a reduction in the old rates and taxes below the 207., while the burden of every increase of them would be thrown upon the tenant and upon this consideration he nonsuited the plaintiffs. A rule having been obtained in the last term for setting aside the nonsuit, it was now opposed by Comyn, |