Curia, per
Woodworth, J.The pauper was bound an apprentice to Fuller, one of the overseers of the poor of the town Hamilton; and served the full term. Maynard, the other overseer of that town, executed the indenture. Two justices were present and approved. Fuller never executed it. It was left in the possession of Maynard, who testified that it was regular; but could not be found on search. The parol evidence was admissible; but the binding was defective; the act, (1 R. L. 136,) declaring that the overseers of the poor, with the consent of any two justices, may bind out any child who is chargeable.
The binding, however, was not absolutely void; but voidable by the parties. It has had its effect between *659them. Neither party has chosen to take advantage of the defect; and it cannot be done by a third person. The town has had the benefit of the service, and cannot object. (Burr. Set. Cas. No. 28, p. 91.) The same principle is recognized in Hudson v. Taghkanac, (13 John. 245.) There the mother bound the child, her husband being alive ; and it was held, that the town could not take advantage of the defect- (Owasco v. Oswegatchie, 5 Cowen,, 527, S. P.)
The cases in which it has been held that a settlement could not be gained under an indenture not stamped, were decided on the words of the statute, 5 W. & M. c. 21, which says the indenture shall not be given in evidence, or available in any court. (Burr. Set. Cas. 199.) The order of the general sessions must be affirmed.
Order affirmed.