that the said articles of apprenticeship and additional covenants in the declaration mentioned, was much before the passing of the said act, yet it is not alleged that the said act had a retrospective effect as to the making of the said articles. of apprenticeship and additional covenant in the declaration mentioned, in that the said act rendered the same void; and further, the said plea is bad and insufficient in this, to wit, that it alleges as a reason for the said John Webster absenting himself not that the said indenture was void, or that he had a right to absent himself, but the said apprentice's determination to leave; and further, that the said plea is bad in this, that it does not confess the plaintiff's cause of action or admit the breach of covenant by the defendant and avoid the same by virtue of the said act; and further, that the said plea is bad in this, that it is pleaded as if the action was against the apprentice when it is against his surety; and also, that the said plea is, in other respects, bad, informal, inconsistent and insufficient.

Judgment was given in the court below in favour of the demurrer, and the case was appealed and argued before this court during the present term.

MACAULAY, C. J., delivered the judgment of the court. The indenture, being made on the 16th of April, 1851, preceded the statute 14 & 15 Vic. ch. 11, which was passed the 2nd of August, 1851.

The cases reported in Harden, 323-4, 2 Strange 1066; Bur. Sel. cases 91, Pt. 28; and the cases of Gray v. Cookson (16 East. 13, 25, 26); Exparte Davis (5 T. R. 715-6); Cumming v. Hill (3 B. & A. 59); Rex v. The Inhabitants. of Sandhurst (7 B. & C. 563); the case of Fish v. Doyle (Draper 340), in which the subject was much discussed; Dallingham v. Wilson, (Easter Term, 3 Vic. U. C. R.); Shea v. Choal (2 U. C. Q. B. R. 211); Black v. Stevenson (3 U. C. Q. B. R. 160); Connell v. Owen (4 U. C. C. P. R. 113); seem to have determined that indentures of apprenticeship for less than seven years are not void, but voidable only, even in England, and certainly in Upper Canada; independently of which the case of Smedley v. Gooden, (3 M. & S. 189),

shews that the additional ground suggested by the court below that it did not appear that the apprentice was a minor at the time the indenture was entered into, puts an end to all question on the subject.

It appears to me, therefore, that the decision of the court below was in accordance with the previous authorities, and that no sufficient ground is shewn for our reversing it; wherefore it should be affirmed with costs.

MCLEAN, J., and RICHARDS, J., concurred.

Per Cur.-Appeal dismissed with costs.

HOLME V. TURNER ET AL.

New trial.

In an action on the case against the occupier of a mill for damage to the plaintiff's close occasioned by back-water from defendants' dam, where the defence relied upon was a prescriptive right to back water for twenty years before action, and there being contradictory evidence as to such right, and the case having been tried by a special jury, and occupying two days, the court refused to disturb a verdict for the plaintiff, and discharged defendants' rule.

Writ issued 22nd of July, 1854; declaration, 22nd of September, 1854.

CASE. First count-That the plaintiff was possessed of a close in the township of Brantford, near the Grand river, from which close a small stream of water ran into the said river; and that the waters of both, before and at, &c., of right ought to have run past and from said close in its usual and natural flow, &c.; yet that defendants, on, &c., wrongfully obstructed the said river and water-course leading from said river, and again into the said river, and in and across the said watercourse below the plaintiff's close, and wrongfully upheld and maintained such obstruction, and also kept, maintained, and upheld two dams and ditches in, upon, and across a branch of the said river and dam across a water-course leading from said river below said close, &c., and thereby stopped and penned back the waters of the said river and small stream below plaintiff's said close, and caused the same to flow back on the same close; whereby, &c. Second count states the close to have been in possession of George S. Wilkes and

Joseph Morrell, as tenants to plaintiff, the reversion being in plaintiff, and then states similar river, water-courses, &c., and back-water, and injury to the reversion. Third count-Similar to the last, only more general and shorter. Fourth and fifth counts-Like the second and third, except that the possession is stated to be in Adam Scott Turnbull and Peter O. Bangoun, as tenants of plaintiff.

Pleas. First: Not guilty to the whole, similiter and issue, Second to first count-That defendants were occupiers of a mill, &c., tenants to James Kerby, situate on the close of said Kerby, lower down the said river than plaintiff's close, and near to and adjoining the same; and that defendants and all occupiers for the time being of said mill, &c., had, and actually enjoyed as of right, and without interruption, for the full period of twenty years next before the commencement of this suit, the right, benefit, and easement of obstructing the said river and water-course, &c., below the close of plaintiff, &c., for supplying said mill with water, &c., and so justify overflowing plaintiff's close to a small extent and necessary degree, &c. Third, to first count-Plaintiff not possessed; to the country. Fourth, to first count-That plaintiff was not by reason of the supposed grievance injured in his possession of the said close modo et forma; to the country. Fifth to second count-Similar to the second plea to first count. Sixth, to second count-Wilkes and Morrell not possessed as tenants of plaintiff. Seventh, to second countPlaintiff not injured in his reversionary interest by the said supposed grievances modo et forma. Eighth, to third count― Similar to fifth plea, except that it does not name the count, but is pleaded to the whole and in shorter terms. Ninth, to third count-Similar to sixth plea. Tenth, to third countSimilar to seventh plea. Eleventh, to fourth count-Similar to the fifth plea. Twelfth, to fourth count-Turnbull and Bangoun not possessed as tenants of plaintiff, &c. Thirteenth, to fourth count-Reversion not in plaintiff. Fourteenth, to fourth count-Similar to fifth and seventh pleas. Fifteenth, to fifth count-Similar to eighth plea. Sixteenth and seven. teenth, to fifth count-Similar to twelfth and thirteenth, pleas. Eighteenth, to fifth count-Similar to seventh, tenth, and urteenth pleas.

Replication. Similiter to first plea. Second-Traverses the second plea, and concludes to the country. Seventh and eighth-Similiters to seventh and eighth pleas. EighthTraverses the eighth plea, and concludes to the country. Ninth and tenth- Similiters to ninth and tenth pleas. Eleventh-Traverses the eleventh plea, and concludes to the country. Twelfth, thirteenth, and fourteenth-Similiters to twelfth, thirteenth, and fourteenth pleas. Fifteenth-Traverses the fifteenth plea, and concludes to the country. Sixteenth, seventeenth, and eighteenth-Similiters to sixteenth, seventeenth, and eighteenth pleas.

At the trial, before Robinson, C. J., at the last autumn assizes for the county of Brant, the case on the evidence turned upon the fact of twenty years' uninterrupted enjoyment as of right, in relation to the Kerby mill and dams respectively. The jury found a verdict for the plaintiff and one shilling damages. The case occupied two days, and the jury, at the close of the court on the first day, viewed the premises.

Two questions were made and left separately to the jury— First, whether defendants' dams caused any back-water upon the plaintiff's close; second, whether the defendants had enjoyed the privilege of so doing as of right, and without interruption, for twenty years before action brought—that is, before the 22nd of July, 1854. As to the first, the Chief Justice saying he refrained as much as he could from going into the evidence by which it was endeavored to be proved that it was physically impossible, upon scientific principles, that the dams could occasion the injury complained of; all of which, however, they had heard, and which, with the plans before them, had been fully explained by the counsel and witnesses; he read the whole evidence, as noted by him, to them, and observed on the testimony as to the alteration said to be visible in the state of the creek in or near the plaintiff's land before and since the erection of the defendants' dams, and asked the jury to find whether it was true that the plaintiff's land had been overflowed by the defendants' dams, and if so to find for the plaintiff, though the injury may have been small. The jury found for the plaintiff, with one shilling damages, on the issues of not guilty, and denying damage.

The case then proceeded upon the pleas of prescription, and much evidence was given on both sides, the defendants endeavoring to establish that of the two dams the upper one was first erected in 1832, and the lower one in 1833,-both more than twenty years before the commencement of this action; also that the mill was raised in 1834 and finished in 1835, but that the back water caused by the dams had preceded the action by full twenty years and more. The plaintiff gave evidence to shew that the mill was not commenced or raised till the summer of 1835, and not finished or at work till the winter of 1836; wherefore, admitting the dams to have been erected the previous year, the alleged twenty years' enjoyment, reckoned from the 22nd of July, 1854, back, was repelled.

At the close of the case the Chief Justice told the jury that the verdict on the first point had established that the defendants had wrongfully overflowed the plaintiff's land before action brought, and the question raised under the present issue was, whether they had done so to any extent, not to as full an extent for excess was not replied; but that it was necessary for the defendants to shew that they had by their dams interfered with the natural flow of the water for twenty years before and up to the bringing of this action without any permission by the plaintiff, but as of right, so as to back the water upon the plaintiff's land,-not so far, perhaps, as the jury may have found it was so overflowed, but to some extent: that the evidence was so very conflicting, and from many respectable witnesses, that he left it to the jury entirely, reminding them that the question was, whether the water was backed more than twenty years ago on the plaintiff's land by the defendants' dams, not whether the mill was built sooner or later, nor even the dam or embankment, but whether the defendants or Kerby had so long exercised the privilege of actually overflowing the plaintiff's land to some extent; also saying to them that if at last they found the point of fact uncertain, they were to consider, on the one hand, would it establish that there was, or that defendants had no right to keep up this or their dam, and might have the effect of rendering useless a valuable property which had at least been