
    Richmond.
    Brewer v. Harris & als.
    
    1. The word “ month” in a statute is a calendar month.
    2. The order of the County Court directs a bastard child to be bound out by the overseers of the poor. If one overseer of the poor of the county executes the indenture it is sufficient.
    3. The master covenants with the overseers of the poor of the county without naming them, and the indenture is in the name of but one, and he and the master only execute it. The indenture is valid.
    4. The indenture contains covenants by the master in favour of the mother of the apprentice, and also in favour of the apprentice; but they are not parties to it. It is nevertheless valid, and the remedies will be adapted to the case.
    5. The statute directs that female apprentices shall be bound out until they are eighteen years old. A binding out until the age of seventeen years is valid.
    In October 1848 Retha Harris, a free woman of co-lour, and whose husband was a slave, on behalf of herself and her three children, Sally, Joannah and Milly Harris, applied to the Judge of the Circuit Court of Henry county for a writ of habeas corpus, to require John S. Brewer to bring the said Sally, Joannah and Milly into Court; and charging that they were illegally detained in custody by Brewer. The writ was awarded; and Breioer, in obedience thereto, brought the parties into Court, and certified their cause of detention to be, that they had been bound to him as apprentices by one of the overseers of the poor of the county of Henry, by virtue of an order of the County Court; and he made the indentures of apprenticeship and the order of the Court a part of his return to the writ.
    The order of the Court was made on the 13th of May, A. D. 1S44, and ordered that the overseers of the poor bind out Sally Harris, Joannah Harris and Milly Harris, bastard children of Retha Harris, a free woman of colour, to John S. Brewer; and that they require the said Brewer to pay an annual hire to the said Retha, the mother, for said apprentices, of one dollar each, from the age of fourteen to seventeen; and that he pay to each of them 12 dollars for the last year of their servitude.
    The indentures bore date the 12th day of November 1844, and were made “ between Richard G. Lamkin, one of the overseers of the county of Henry, of the first part, and John S. Breioer, of the same county, of the second part;” and witnessed that Lamkin, in his character of overseer of the poor aforesaid, and pursuant to the order of the County Court, which was set out in the indentures, bound the said Sally, Joannah and Milly to Brewer, as apprentices, until they attained the age of 17 years. And he covenanted with Brewer, that the apprentices should serve him faithfully, and honestly demean themselves. The covenants by Breioer, which were the same in all of the indentures, were as follows: “ And the said John S. Brewer, on his part, doth covenant and agree to and with the overseers of the poor for the county of Henry, and their successors, to pay unto the said Retha Harris, the mother of the said Milly, the annual sum of one dollar, for the services of her daughter, from the age of fourteen to seventeen years; and that he will instruct and cause the said Milly to learn and be taught all the art, trade and mystery of washing and spinning; and that he will at all times treat the said apprentice Milly with humanity, and furnish her with good and wholesome food and raiment during the time of her apprenticeship; and moreover will pay unto the said Milly the full sum of 12 dollars at the expiration of her said apprenticeship.” The indentures were executed by Lamkin and Brewer; and they were endorsed by the clerk of the County Court as filed in his office on the 12th of November 1844.
    
      The case came on to be tried at the October term of the Court for 1848, when the Court held that the said Sally, Joannah and Milly Harris were illegally detained in the custody of John S. Brewer, and ordered them to be discharged, with their costs. Brewer, thereupon, applied to this Court for a supersedeas to the judgment, which was awarded.
    
      Grattan, for the appellant.
    It is understood that the decision of the Court below was- founded on the construction to be given to the word “ month” in the statute. The act of 1839, Sess. Acts of 1839, ch. 84, <§> 2, p. 52, requires that the indentures of apprenticeship shall be filed in the clerk’s office of the County Court, within six months from the date of the order of the Court authorizing them to be executed. In this case they were returned within six calendar, but not within six lunar months. And the question therefore arises, whether in a statute the month is to be construed as calendar or lunar in Virginia.
    
    In England, the word month in a statute means a lunar month, unless when the word calendar is added. 1 Comyn’s Dig. title Ann. letter B, p. 628. And although this has been regretted, Lacon v. Hooper, 6 T. R. 224, yet this construction having been adopted at an early day, it has been conformed to in their legislation, and been sustained by the Courts.
    When this construction of the term month in a statute was adopted, it was in accordance with the general usage of the country; and the term received the same construction when used on other occasions, as in leases, contracts and the like. 2 Black. Com. by Chitty, 141, and note. That is not the case, however, now, even in England; but as the general understanding of the country has changed, and the term when now used, is meant to express a calendar month, so the Courts, in construing the language of parties, give to the term the meaning which was intended by the persons using it." Lang v. Gale, 1 Maule & Sel. 111; Hipwell v. Knight, 1 Young & Col. 401; Chitty on Bills 406. And no doubt the change would have been made in the construction of the word in statutes, if the early decisions had not induced the continued use of the term according to its original import.
    Looking to the decisions in the United States, we find that in New York the old construction of the word has been sustained in the interpretation of a statute; though not in contracts. Stackhouse v. Halsey, 3 John. Ch. R. 74; Loring v. Halling, 15 John. R. 119; Leffingwell &c. v. White, 1 John. Cas. 99; Parsons v. Chamberlain, 4 Wend. R. 512. But the Court will lay hold of any terms or provision of the act to infer that a calendar month is intended. Snyder v. Warren, 2 Cow. R. 518 ; People v. Mayor of New York, 10 Wend. R. 393. In Massachusetts, the term in a statute means a calendar month. Hunt v. Holden, 2 Mass. R. 170; Avery v. Pixley, 4 Id. 460; Churchill v. Merchants Bank, 19 Pick. R. 532. So in Pennsylvania. Brudenell v. Vaux, 2 Dall. R. 302; Commonwealth v. Chambre, 4 Id. 143; Moore v. Houston, 3 Serg. & Rawle 184; Shaply v. Garey, 6 Id. 539. So in Connecticut. Strong v. Birchard, 5 Conn. R. 357. So in Vermont. Kimball v. Lamson, 2 Term. R. 138. So in Kentucky. Pyle v. Moulding, 7 J. J. Marsh. R. 202; Commonwealth v. Shortridge, 3 Id. 638; Payne v. Wallace, 2 A. K. Marsh. R. 244; Hardin v. Major, 4 Bibb’s R. 104. And so in South Carolina. Alston v. Alston, Const. R. 604; Williamson v. Farrow, 1 Bailey’s R. 611. In Virginia, there has been no direct decision of the question; though there are cases, in which this Court has obviously acted on the assumption that the term month in a statute meant a calendar month. Poling v. Johnson, 2 Rob. R. 255; Moore’s ex’or v. The Auditor, 3 Hen. & Munf. 232; Roanes v. Archer, 4 Leigh 550, 565.
    
      An examination of our statute law, will prove beyond all question, that in the contemplation of the Legislature, the word month means á calendar month. After a very extensive search, the only instances in which the word has the prefix “ calendar,” are in the statute regulating chancery proceedings, which is an old statute, and in which it occurs in a few instances; whilst in the other hundreds of instances in which the word month is used, it is used without the addition, though in many cases it is absolutely certain from the statute that a calendar month is intended. And the counsel on the other side are challenged to produce an instance, since the revision of 1819, in which the term calendar, to designate the month, is employed, except in the late Criminal Code, where, to leave no doubt upon the subject, it is enacted that, the word month shall, in a statute, mean calendar month. Unless, then, this Court sitting here to expound the law, is bound to believe as Judges, what they do not believe as men, and to give to this statute a meaning which it was not intended to express, there cannot be a doubt about the construction of the word month. Is this Court bound to violate common sense, and the manifest intention of the Legislature, because by the ancient common law a month in a statute was a lunar mouth ? If it be so, they are equally bound to construe the word in the same way when found in a deed or a contract, or a bill of exchange. The authorities, before cited, shew that the word, when used in these instruments, was, by the old common law, to be construed in the same way. But it is the boast of the common law, that it adapts itself to the condition and circumstances of the country and the times. We witness this in relation to the law of waste, of interest on rents, in the construction given to this word month, when used by men in all their transactions with each other; and why shall it not be adapted to the legislation of the country as well as to the business of the country ? And if this be done, the indentures were filed in the office within the time prescribed by the statute.
    It will be objected in this Court, that the indentures are void, because executed by but one overseer of the poor. The act 2 Rev. Code, ch. 239, § 1, p. 264, provides that the counties shall be divided into districts, in each of which three overseers of the poor shall be elected. And the 14th section of the act directs that the overseers of each district shall report to the County Court such poor orphans in their district, and such children within the same, whose parents they shall judge incapable of supporting them, and bringing them up in honest courses; and the Court may direct the said overseers, or either of them, to bind out such children, apprentices, to such persons as the Court shall approve, upon the terms prescribed by the 25th section of the act 1 Rev. Code, ch. 108, p. 410. That act prescribes the covenants into which the master shall enter; and it has been amended by the first section of the act of 1839. Sess. Acts, ch. 84, p. 51. A Reference to these acts will shew that the binding of an apprentice, the person to whom he shall be bound, and the conditions on which he shall be bound, are, all of them, to be directed by the County Court; and the Court is to direct the overseers of the district, or any one of them, to bind out the orphan. The act of the overseers of the poor, in executing the indentures, is merely ministerial; and it is well settled, too, that they are not responsible on the covenants in the indentures.
    It may be said, indeed, that the overseer acted in these cases under the 35th section of the act 2 Rev. Code, ch. 239, p. 274; and that this section of the act authorizes the overseers of the poor to bind out bastard children, without the direction, and free from the control of the County Court; and that they are in these cases exercising a very important and delicate trust, and therefore they must pursue their authority strictly. But whatever ground there may have been for this suggestion. prior to the act of 1839, there certainly is none for it now. By the third section of that act, it is provided that no indentures of apprenticeship entered into by the overseers of the poor, without the authority of the Court, and an order made to that effect, shall be of any force or validity whatever. At this day, therefore, the County Court has the entire control of the subject.
    The overseer performing a mere ministerial act, there is certainly no advantage to be attained by having more than one to execute the indentures; and we see that the 14th section of the act authorizes the County Court to direct the overseers of the district, or any one of them, to do the act. In the cases now before the Court, the order is to the overseers of the poor generally. This of course can only refer to the overseers of the district; and as the Court may direct one to perform the act, and there is no reason why more than one should act, the order may be construed as giving the authority to all or one. The King v. Hinckly, 12 East 361. Indeed, if the Court shall think that it is necessary, under this order, that all the overseers in the district should act, it will be presumed that there was but one in office at the time. The King v. Hinckly, supra. And if there was but one, he was authorized to act under the order. The King v. Inhab. Earl Shelton, 1 Barn. & Ald. 275.
    It will be objected, too, that the indentures are defective and void, on the ground that Brewer does not covenant with Latnkin, the overseer who executed the indentures, but with the overseers of the poor of the county of Henry, without naming them; and as they are not a corporate body, and the indenture is a deed inter partes, on the principle of Boss v. Milne, 12 Leigh 204, no suit can be brought upon the covenants therein contained, against Brewer the master.
    
      Although the overseers of the poor are not a corporate body, their existence is recognized by the law ; and the persons who are overseers of a county or district at any specific time, are to be ascertained by the record of election i anc* though they are not named in the covenants, they may maintain an action upon them. We are all familiar with this doctrine in the cases of bills and notes payable to order or bearer, or assignees ; and a bond payable to the holder has been held to be valid. Gorgier v. Mieville, 10 Eng. C. L. R. 16. They may maintain an action on the covenants, if, indeed, overseers of the poor expressly named may maintain such an action; which seems to be doubtful. Poindexter v. Wilton, 3 Munf. 183; Bullock v. Sebrell, 6 Leigh 560. These cases seem to indicate, that the apprentice, though he is never a party to indentures by overseers of the poor, is the proper person to sue for a breach of the covenants made for his benefit. And this he certainly cannot do, if the principle decided in the case of Ross v. Milne, is applicable to such indentures. That, however, is a common law principle, applicable to common law instruments. The indenture is a statutory deed, and the Court will mould the remedies upon it, to suit the exigencies of the case.
    To justify the judgment of the Court in this case, the indentures must not only be voidable, but they must be void. Voidable indentures are only to be avoided by the parties to them, in a proper proceeding instituted for that purpose. Rex v. St. Petroch, Burr. Set. Cas. 249 ; Rex v. Stokes, 1 Wils. R. 96. In these indentures, there is every thing substantially, that the law requires, and no technical expressions are necessary. The King v. Inhab. Lamdon, 8 T. R. 379. The fact that the apprentices are only bound until they are seventeen years old, at most, only renders the indentures voidable. Gray v. Coockson, 16 East’s R. 13.
    
      
      Bouldin and Stanard, for the appellees.
    The decisions in the English Courts, from the earliest to the latest, all of them, without exception, hold, that in a statute, the word month, unexplained, is a lunar month. And this is done by applying the principles of the common law to the construction of the statute. The Court is referred to Thomas v. Popham, Dyer 218 b; 2 Inst. 574; Dormer v. Smith, Croke Eliz. 835; 3 Thomas’ Coke 387, and note; Bishop of Peterborough v. Catesby, Croke Jac. 166; Jocelyn v. Hawkins, 1 Strange’s R. 446; Hurd v. Leach, 5 Esp. R. 168; Lacon v. Hooper, 6 T. R. 224; The King v. Adderly, Doug. R. 463; Blunt v. Heslop, 35 Eng. C. L. R. 461; Story on Conflict of Laws, p. 226; Chitty on Bills 372; 2 Pothier on Obligations 45-6.
    Such was the ancient common law, and such it is now. And as we have adopted the common law, and have not altered it by statute in respect to this word month, the law of Virginia must be the same. In the absence of statute law, and of decisions by our own Courts, there is no other source to which we can go to ascertain what the law is, but the common law: and by that, our Courts are bound as conclusive authority, by the express provisions of the statute which adopts it as the law of Virginia. 1 Rev. Code, ch. 38, p. 135; Murdock & Co. v. Hunter's representatives, 1 Brock. R. 135.
    If, by the principles of the common law, the word month in a statute, meant a lunar month, then prior to the revolution our Colonial Courts were bound so to construe it, unless the statute upon its face explained it otherwise. We have had reference to no instance of the use of the term prior to 1776. The first statute after the declaration of independence, regulating proceedings in chancery, keeps up the distinction between “month” and “ calendar month,” according to the English rule, and when a calendar month is intended, it is so expressed. Act of 1777, 9 Hen. Stat. ch. 15, p. 389. In the act of 1788, 12 Hen. Stat. p. 474, the term calendar is dropped; but it is again restored in the act of 1792; (13 Hen. Stat. 411;) and in some places the word is used in connexion with month, whilst in others the month is spoken of without any addition. In these latter cases, it must be held to be lunar. Crooke v. M’Tavish, 8 Eng. C. L. R. 329. So in the revisal of 1819, executed under the superintendence of a gentleman standing among the first in his profession, and distinguished for his accuracy, the counsel for the appellant has referred us to instances in which the term calendar is used to give meaning to the word month; and we must presume, therefore, that when it is not so used that it was intended the month should receive its ordinary common law meaning.
    The cases in the American Courts are obviously generally governed by the manifest intention of the statute which is the subject of construction, though there are a few of them in which the decision is based on the meaning of the word in its general use. But in New York, the common law construction was adhered to until it was changed by statute. Stackhouse v. Halsey, 3 Johns. Ch. R. 74; Loring v. Halling, 15 Johns. R. 119.
    It is said by the counsel for the appellant, that it is obvious from the statute in some cases that the word month means a calendar month, though it is not so expressed. In these cases it would be construed according to the obvious intent in England; and they do not, therefore, infringe upon the principle established by the uniform decisions of the English Courts, in relation to those cases in which there is no such manifest intent. These are infinitely more numerous than the others, and may be subjected to the construction which has been firmly established for three hundred years, without doing violence to the language or the manifest intent of the statute.
    
      There is no doubt that the master’s right to the custody and service of the apprentice, must be derived from the indentures; and unless they are valid, he has no right. In these cases the indentures are invalid, because : First. They are executed by but one overseer of the poor of the county of Henry.
    
    The act 2 Rev. Code, ch. 239, § 1, p. 264, provides that the counties shall be laid off into districts, and that thrée overseers of the poor shall be elected for each district. The 14th section of the act prescribes the duties of the overseers of the poor of the district in reporting to the County Court poor orphans, and children whose parents are not able to support them and bring them up in honest courses; and provides that the Court may direct said overseers, or any one of them, to bind them out upon the terms prescribed in the act. 1 Rev. Code, ch. 108, § 25, p. 410. This is a power of great delicacy, and liable to great abuse, and is certainly not to be wantonly exercised. The principles on which the Court and the overseers should act, are well expressed by Dampier, J., 1 Dickinson’s Justice, p. 101. And as in England, the justices who act in directing the orphan to be bound out, must act together, The King v. Ridware, 3 T. R. 380, so here, the overseers of the poor who are directed to bind out an apprentice, must unite in executing the indentures.
    But the proceedings in this case are not to be considered in reference to the 14th section of the act, but to the 35th section. These persons were bound as bastards, over whom, by the 35th section of the act, the entire control is vested in the overseers of the poor of the district. They are empowered to bind out bastards, when and to whom, and upon the terms they may choose, without any application to, or control from the Court. The whole power is in them.
    If we look to the terms of the act, we find that this is a joint power. There is not here, as there is in the 14th section, an authority to the overseers or any one of them to act. And if we look to the power with which they are clothed, a power to take an infant child from the arms of its parent, we may find abundant reason for re(lah'ing that in the exercise of such a power, the overseers of the district should act jointly and together, as is required of the justices in The King v. Ridware, supra.
    
    The act of 1839, Sess. Acts, ch. 84, p. 51, § 1 and 3, it is true, secures an appeal to the County Court. But the act, so far from enlarging the power of one overseer, limits the power of all. Before, the overseers, we have seen, might bind out bastards, at their own discretion. Now, there is no power to bind out bastards, except by the overseers of the poor, and that by the order of the Court.
    But if it appeared upon the face of these indentures that the overseer of the poor was an overseer of the district in which these bastards lived, and that he had been expressly authorized by the Court to bind out these persons, he would not have had the power to do the act. We have already shewn that the power given by the 35th section of the act of 1819, is a joint power. The act of 1839 uses the term “ overseers,” which of itself implies more than one; and there is nothing in that act, certainly, which changes the nature of the power. The Court, therefore, could not make the power several. The 14th section of the act says, the overseers of the poor, or either of them ; but there is no such alternative in the 35th section, as to bastard children. As to these, the Court had no power before 1839; and since that time, its power is negative rather than positive. It may restrain the action of the overseers of the poor, but it can give them no power to act, which they did not before possess. The 14th section refers to the overseers of the poor of the district. If the 35th section is to be construed as referring to them, still the order must be directed to the overseers of the district, who alone are authorized to act, or can be directed to act.
    This power, both of the Court and the overseers of the poor, is a limited authority, and must therefore be pursued strictly. Yet there is nothing in this record to shew that the person who acted, was an overseer of the poor of the district in which the bastards lived. And if we might presume that he was, it no where appears that he was authorized by the Court to act. Indeed, the order itself is a nullity, because it directs the overseers of the poor generally to bind out the persons named in it. We submit that the case comes clearly within the principle of Hamlett v. The Commonwealth, 3 Gratt. 82, and Saunders v. The Commonwealth, Id. 214. Surely a single overseer of the poor can only act as the agent of the Court. For the principles of construction applicable to these statutes, we refer to 6 Bac. Abr. title Statutes, letter I, and 1 Tuck. Com. book 2d, ch. 7, p. 75. And for the proper form of the indentures, we refer to Hening’s Justice 68.
    The indentures are defective and void, in the next place, because Brewer covenants with the overseers of the poor generally, without naming them. The overseers of the poor are not a body corporate, and therefore cannot sue as such. Nor can an action be brought upon that covenant by them. Poindexter v. Wilton, 3 Munf. 183. There is no covenant to the apprentice, on which she could sue; nor if there was, could she sue upon it, as the indenture is a deed inter partes, and she is no party to it. Ross v. Milne, 12 Leigh 204.
    Lastly, the apprentices are only bound until they are seventeen years old. Whereas the statute directs that they shall be bound until they are eighteen.
   Baldwin, J.

By the 2d section of the statute of the 6th of April 1839, concerning apprentices bound out by overseers of the poor, it is enacted that all indentures of apprenticeship executed pursuant to an order of Court, shall be filed in the clerk’s office of the Court, within six months from the date of the order. And it shall be ^ie c^er^ t0 endorse on said indentures the day on which they were delivered to him to be filed; and unless such indentures shall be so filed and endorsed, they shall not be available so as to entitle the master, mistress, or their assigns, to the services of the apprentice.”

It appears in this case, that the indentures were filed and endorsed within six calendar, but not within six lunar months, from the date of the order. And it is insisted on the part of the defendants in error, that in the construction of this enactment, the Legislature must be taken to have had reference to lunar and not to calendar months. If this be so, then the effect must be to defeat the obvious intent of the Legislature. We know perfectly well that, with us, by general usage and popular acceptance, whenever the word months is used, without qualification or explanation, in common parlance or business transactions, it is understood to mean calendar and not lunar months. Now, in the use of language not technical, the Legislature must be supposed to express their meaning according to the sense in which it will be understood by the persons for whom they legislate. And that in point of fact, this word has uniformly been so employed, we also know, from the whole course of our legislation and judicial proceedings. It is impossible, therefore, that the legislative will, thus indicated,-can be controlled and perverted, and extensive mischiefs introduced into our jurisprudence, by the application to the subject of English adjudications. Whatever may be the meaning in this respect of the English statutes, (founded originally upon a different usage and habit,) such is not the meaning of our Virginia statutes; and that is all upon such a question, which it is our province to adjudicate.

The other objections, which have been urged against the order of the County Court, and the indentures of apprenticeship pursuant thereto, are not well founded.

The statute concerning guardians, orphans, curators, infants, masters and apprentices, 1 Rev. Code, ch. 108, and the statute concerning the poor, &c., 2 Rev. Code, ch. 239, so far as they relate to the binding out children as apprentices by the overseers of the poor, are in pari materia, and. ought to be construed together, the more especially as the two statutes are revised acts, passed at the same session, and to take effect on the same day, so that neither could have been intended to operate as a repeal of the other.

The 25th section of the act concerning guardians, &c., 1 Rev. Code, p. 410, provides that “every orphan who hath no estate, or not sufficient for a maintenance out of its profits, shall, by order of the Court of the county or corporation in which he or she resides, be bound apprentice by the overseers of the poor, until the age of 21 years if a boy, or of 18 years if a girl, to some master or mistress, who shall covenant to teach the apprentice some art, trade or business, to be particularized in the indenture; and also, (except in the case of black and mulatto orphans,) reading and writing, and common arithmetic, including the rule of three, and to pay him or her 12 dollars at the expiration of the time.”

The 14th section of the act concerning the poor, &c., 2 Rev. Code, p. 268, provides that “ the overseers of the poor of each district shall monthly make returns to the Court of their county, of the poor orphans in their district, and of such children within the same, whose parents they shall judge incapable of supporting them, and bringing them up in honest courses; and the said Court is hereby authorized to direct the said overseers, or either of them, to bind out such poor orphans and children apprentices to such person or persons as the Court shall approve of, until the age of 21 years if a boy, or 18 years if a girl, on the terms prescribed and directed by the act 1 to reduce into one the several acts concerning guardians, orphans, curators, infants, masters and apprentices.’ ”

The 35th section of the last mentioned act, 2 Rev. Code, p. 274, provides that “ every bastard child may be bound apprentice, by the overseers of the poor of the district or corporation for the time being, wherein such child shall be born; every male, until he attains 21 years, and every female until she attains 18 years, and no longer; and the master or mistress shall be subject to the same conditions as are prescribed in the case of an apprentice, by the act, entitled ‘ an act to reduce into one the several acts concerning guardians, orphans, curators, infants, masters and apprentices.’ ”

It will be seen from a connected view of these statutory provisions:

1. That the 25th section of the act concerning guardians, &c. applies to legitimate poor orphan children of whatever colour; and the Court may order them to be bound out as apprentices by the overseers of the poor of the county, without regard to the district in which they may happen to reside; and there is nothing to prevent the sitting justices from acting upon their own knowledge, or proper information derived from others.

2. The orphans to which the 14th section of the act concerning the poor, &c. relates, are the same poor orphans mentioned and more particularly described in the 25th section of the act concerning guardians, &c. The object of the 14th section of the act concerning the poor, &c. was to extend the authority of the Court to the legitimate children, of whatever colour, of parents incapable of supporting them and bringing them up in honest courses; and to furnish the Court with means of information in regard to them, as also in regard to the poor orphans mentioned in the 25th section of the act concerning guardians, &c., by directing the overseers of the poor of the several districts to make return of such poor orphans and children of incompetent parents; but it was not designed to prevent the sitting justices of the Court from acting upon their own knowledge or other proper information, nor to restrict the merely ministerial function of binding out (as the Court should direct) to the respective overseers of the several districts.

3. The 14th section of the act concerning the poor, &c., serves to shew that the overseers of the poor have no authority to determine, either in regard to poor orphans, or to poor children of incompetent parents, the master or mistress to whom, any more than the terms upon which, the person shall be bound out; but that the master or mistress must be approved of by the Court.

4. The same 14th section serves also to shew that the authority of overseers of the poor to bind out, under the direction of the Court, does not require that all the overseers of the poor of the county, or all the overseers of the poor of a district, shall unite in performing the act, but that it may be performed by any overseer of the poor of the county.

5. The 35th section of the act concerning the poor, &c., gave no power to the Court in relation to the binding out of bastard children, of whatever colour; but the whole authority and jurisdiction over the matter was vested in the respective overseers of the poor of the several districts, to be exercised, subject to the terms and conditions prescribed by law, according to their judgment and discretion, the only mode of manifesting which was by their executing the indentures of apprenticeship.

Thus the subject stood until the passage of the act already mentioned, of the 6th of April 1839, concerning apprentices bound out by overseers of the poor. Sess. Acts 1839, ch. 84, p. 51. The first section of that act provides, “ that hereafter when any free person of co-lour shall be bound out by order of any County or Corporation Court as an apprentice, it shall be the duty of the Court making such order to consider what will be the reasonable annual value of the services of such apprentice in the particular art or business which he or s^e t0 taught, for each year of his or her apprenticeship ; and if such apprentice shall have a father or mother living, the Court shall require that the master or mistress, as the case may be, shall pay him or her the reasonable value of such services for every year of the apprenticeship, except the last. And if there be no father or mother, then the same shall be paid to the overseers of the poor, for the use of the poor, and in either case the last year’s hire or value of the services shall be paid to the apprentice; and the failure of any master or mistress, or their assigns, for the period of three months, to pay the said allowance to the father, mother, or overseers of the poor, as the case may be, shall be sufficient cause with any Court, having jurisdiction thereof, to cancel or quash the said indentures.” And the third section of the same act provides “that no indentures of apprenticeship, entered into by the overseers of the poor, without the authority of the Court, and an order made to that effect, shall be of any force or validity whatever.”

The effect of this act was to abrogate the peculiar and exclusive power and jurisdiction of the respective overseers of the poor of the several districts in regard to bastard children, (of whatever colour,) by executing indentures of apprenticeship, and to vest such power and jurisdiction, so far as it was judicial, in the Court. This carried with it the authority to direct the ministerial act of executing the indentures to be performed by the overseers of the poor, which there was no reason for confining to the overseers of the poor of the district, who do not appear to have been contemplated by the statute: on the contrary it has reference, where overseers are mentioned, to overseers of the poor of the county. It would have been idle in the Legislature to have made a distinction, with respect to the ministerial act of executing the indentures, between bastard children of colour and legitimate orphan children of co-lour ; and it is clear that none such was in the legislative mind.

In this case, the apprentices in question are bastards, their father being a slave, and therefore incapable of contracting matrimony in the mode prescribed by our law. And the County Court exercised its legitimate jurisdiction, by ordering them to be bound out by the overseers of the poor of the county, upon prescribed terms, to a person designated in the order. It cannot be supposed that the Court meant the overseers in a corporate character, or all of them individually, instead of such and so many of them as the law directs; and the law is obeyed, and the substantial purpose of the Court accomplished, when the act is performed by one or more of the overseers.

The indentures in question, therefore, were executed by due authority, and between the proper parties, and moreover express the relative legal obligations of the master and apprentice. This is enough in these statutory indentures to give adequate remedies to the apprentice, and others entitled, in their own names, for any failure of duty on the part of the master, whatever may be the form of the covenants.

As to the objection that the order of Court, and the indentures in conformity therewith, require the apprentices to serve only until they attain the age of seventeen, instead of eighteen years, it furnishes no sufficient reason for declaring the indentures void. Having been authorized and executed by competent authority, they created the relation of master and apprentice, during the existence of which the custody by the master is not unlawful. If, therefore, the Court had committed an error of judgment in this particular, it could not be corrected by a writ of habeas corpus. But the law in regard to the term of service by the infant, is merely directory; and, moreover, the departure from its direction in the present instance, was manifestly for the benefit of the' aPPren tices.

My opinion is, that the judgment of the Circuit Court ought to be reversed, and the apprentices remanded into the custody and service of their master; but that in the exercise of the discretion given by the habeas corpus act, costs ought not, under the circumstances of this case, to be allowed either in this Court or in the Court below.

Allen, J. The act, entitled an act to reduce into one the several acts concerning guardians,.orphans, curators, infants, masters and apprentices,” 1 Rev. Code, p. 405, would seem from the very title to be intended to extend to and embrace all infants, whether white or free coloured, legitimate or illegitimate, whose condition in life was such as to make it proper to bind them out as apprentices. In conformity with our system, a general superintendence over the whole matter is conferred upon the Court of the county or corporation where the infant resides; and the overseers of the poor, so far as they are authorized to act in relation to the matter, act as the agents of and in subordination to the Court. ■ If the overseers cannot prevail upon a proper person to accept of the orphan as an apprentice, the guardian, with the approbation of the Court, may take from the personal estate such sums of money as may be necessary for the immediate support of the orphan until the overseers can find a suitable master. Every orphan who hath no estate or not sufficient for a maintenance out of the profits, shall by order of the Court be bound apprentice by the overseers of the poor. The Court is to hear complaints of apprentices, to determine the cause in a summary way, for proper cause to remove the apprentices, and bind them to other masters if necessary. Many of these provisions of necessity apply to all orphans and apprentices, without reference to colour or legitimacy; and it being the manifest intention of the Legislature to embrace all in many of the provisions of this act, it seems to me too narrow a construction of the 25th section to confine the power there conferred to legitimate children alone. The illegitimate child being jilius nullius, may within the scope of this statute be fairly treated as an orphan from his birth.

The act in relation to the poor, 2 Rev. Code, ch. 239, being embraced in the same revision, and so far as relates to this matter, being in pari jnateria, is to be construed in connection with the act first referred to. The 14th section extends the authority of the Court to poor children whose parents are incapable of supporting them; a class not embraced by the 25th section of the act in relation to guardians. And the 35th section provides, that a bastard child may be bound apprentice by the overseers of the district wherein such child shall be born; and in each instance to be bound on the terms and conditions of the act in relation to guardians, &c. If I am correct in supposing that, by the first recited act, the Court was authorized to direct the binding out of bastard children, this authority is not taken away by the 35th section of the poor law. The most that could be claimed for it would be, that it conferred power on the overseers of the district to bind out bastard children without the previous order of the Court. Whether it did so or not, is unnecessary to consider in this case. For by the 3d section of the act of April 6th, 1839, p. 51, it is provided that no indentures of apprenticeship, entered into by the 'overseers of the poor without the authority of the Court, and an order made to that effect, shall be of any force or validity whatever. Since this act, the control over the subject is vested in the Court exclusively. It had, in my view of the previous acts, concurrent authority with the overseers of the district; and when the power was taken away from the overseers of the district to act separately, it remained with the Court to be exercised as theretofore, in the mode prescribed by the 25th section of the act concerning guardians, as modified by the 1st and 2d sections of the act of 1839. The 25th section of the act in relation to guardians, directs that the infant shall, by order of the Court, be bound apprentice by the overseers of the poor. It does not require that all the overseers or any particular number shall act. The duty is merely ministerial, and may as well be executed by one as all. And such seems to have been the legislative construction : for by the 14th section of the poor law, by which the overseers of the poor of each district are required to report to the Court the poor orphans and poor children in their district, the Court is authorized to direct the said overseers or either of them to bind out. This direction may be given to any of the overseers of the poor, and is not confined to the overseers of the district. I therefore think the indenture in this case, though executed by. but.pue overseer, and though it is not stated he was oyerse'etqof Jthe,-district in which the bastard child was born, is not invalid. On the other questions presented by the assjgpmeqit of errors and discussed at the bar, I concur with Judge Baldwin. I think the judgment should:bp reversed, and the petitioners remanded.

Brooke, J. I do not think this was a fit case for a writ of habeas corpus. If the indentures were erroneously taken by one overseer of the poor, instead of the number required by the law, the proper forum in which to obtain redress was the County Court. That Court would afford relief to the apprentices for that or any other injury of which they might complain.

I think, however, that the indentures were well taken by one overseer of the poor. In these cases of police, the acts of the police officers are not to be construed very technically ; if substantially right, it is all that can be expected.

Whether the children of free persons of colour are all to be construed bastards, it is not material to decide in this case. There is no form of marriage, as regards them, pointed out by our statutes. It is true they are permitted to inherit the real property of their parents, not as being legitimate, but because the law has made no other provision for it; and where that is the case, as property is the creature of the law, it is permitted to pass according to our act of descents.

As to the meaning of the word month in our laws, I concur with my brethren that calendar months and not lunar months is meant in all our acts of the Legislature.

I think the judgment of the Circuit Court should be reversed, and the writ of habeas corpus quashed; and the apprentices sent back to their master.

The other Judges concurred in the judgment, which reversed the judgment of the Circuit Court, but without costs, and remanded the apprentices tody and service of their master, butjmt <> the Circuit Court.  