1788. The KING tants of NEWTON wages; but that circumstance cannot vary this case, as it only ascertains the quantum of the wages, and does not limit the duration of the service, or control the general hiring. Under the against The Inhabi- first division of cases on this head may be classed those where there was a hiring for a year, for wages not reserved yearly, but TONEY. for a shorter time, or by the piece; namely, R. v. Atherton (a), and R. v. King's Norton (b); in the former of which there was an hiring for a year, for wages payable quarterly, where the pauper, by serving a year, was held to gain a settlement; and in the latter of them, a settlement was gained by serving under an hiring for a year to spin at the rate of is. 6d. per stone. The next division of cases is where there was an hiring by the week, or for less time than a year, at weekly or other wages reserved for less time than a year, where no settlement was gained. And those are R. v. Wrinton (c), and R. v. Brandninch (d), where there was a weekly hiring, at weekly wages ; and R. v. Elslack (e), where the pauper was hired to serve as long as the master wanted a servant, at weekly wages. The third class of cases is where there was a general hiring at weekly wages, but where something afterwards passed to shew that the parties did not originally intend to contract for a year; such as R. v. Dedham (ƒ). In such a case no settlement can be gained, because the general presumption is rebutted, that it was intended to be a general hiring. There is also another head of cases where a settlement has been gained under a general hiring, at weekly wages, where nothing has afterwards passed between the parties to shew that they did not intend it to be a general hiring, of which description is R. v. Seaton and Beer (g). In that case the Court held, that the pauper should gain a settlement; and that the reservation of weekly wages could not of itself defeat a general hiring. Now the present case is precisely similar to that; here is a general hiring with weekly wages; and it cannot be collected either from the contract itself, or from the subsequent contract of the parties, that the hiring was intended to be for a shorter period than a year. Neither can the reservation of weekly wages control the general hiring, on the authority of R. v. Seaton and Beer. With respect to the apprehension of the pauper, it has been repeatedly determined that that cannot vary the case. (a) Burr. S. C. 203. Bott. 312. (d) Ibid. S. C. 662. Bott. 285. (e) Hil. 25 G. 3. B. R. (ƒ) Burr. S. C. 653. Bott. 284. (g) P. 24 G. 3. B. R. Marshal, Marshal, Serjt. and Portal, contrà, were stopped by the 1788. Court. a ASHHURST, J. The case of The King v. Dedham is much stronger than the present. There the pauper hired himself to plumber and glazier, board, lodging, and washing, summer and winter, at six shillings per week. And though the pauper continued in his service above a year, the Court said that they could not make it a hiring for a year, and that the pauper could not gain a settlement by it. It is impossible to distinguish the two cases upon principle. In the present case the pauper hired himself as an hostler, at 4s. 6d. per week; but that cannot be considered as a general hiring; and if either party had chosen to dissolve the contract before the expiration of a year, no action could have been maintained by the other. With respect to the apprehension of the pauper, it has been decided in a variety of cases, that that cannot vary the contract. BULLER, J. This case is not so strong as that of The King v. Dedham; for there the expression "summer and winter" shewed that the party had it in contemplation to continue a year in the service. In the present case the hiring is merely at so much per week. Now if there be any thing in the contract to shew that the hiring was intended to be for a year, there a reservation of weekly wages will not control that hiring. But if the payment of weekly wages be the only circumstance from which the duration of the contract is to be collected, it must be taken to be only a weekly hiring. And the hiring in the present case is of that kind. GROSE, J. Considering the situation of the pauper, and what passed at the time of entering into this contract, this appears not to be an hiring for a year. The pauper was hired in the character of hostler, at 4s. 6d. per week; now that circumstance alone shews that he was not likely to continue a year in his service. Besides, it appears that he actually left his service in the middle of the year, which satisfies me that it was not intended by the contracting parties to be an hiring for a year. Rule absolute (a). (a) R. v. Odiham, post. 622. S. P. Vid. R. v. Birdbrooke, post. 4 vol. 245., where a service for a year, under a hiring at 31. per week the year round, with liberty to go on a fortnight's notice, was held to give a settlement. R. v. Hampreston, p. 5. vol. 205., a similar case, acc.: and R. v. Worfield, p. 5. vol. 506., as to an implied general hiring. The KINO The Inhabi tants of TONEY. The 1788. Saturday, April 26th. If a return to a mundamus consist of several independent with each good in law, and part bad, the quash the return as to such part only as is bad, and secutor to rest. Where two causes inconsistent, The KING against The Mayor, &c. of CAMBRIDGE. a mandamus to the mayor, bailiffs, and burgesses of Cambridge, to admit Patrick Beales into the office of common councilman, they returned, that the borough of Cambridge matters not was a borough by prescription, and under a charter of king inconsistent James the First; and that the mayor, bailiffs, and burgesses, other, but have been used and accustomed to admit to the freedom of the part of them said borough such person and persons, upon payment (to the use of the borough aforesaid) of such sum and sums of money as Court may the mayor, bailiffs, and burgesses of the said borough, or the major part thereof, have agreed and fixed upon in common-hall; and upon payment of such sum and sums of money, and being sworn into the office of burgess, such person hath been entitled put the pro- to all the privileges, rights, and profits belonging to the office of plead to or burgess of the said borough. And further, that from time immetraverse the morial there have been, and still are, within the said borough, certain officers of the said borough, called bailiffs, and other cerreturned are tain officers, called treasurers; and that within the said borough the whole is there is, and from time immemorial there hath been, a certain bad (a). ancient and laudable custom used and approved of, that no burgess of the said borough hath been eligible to the office of a common councilman of the said borough, who hath not actually served the office of treasurer and bailiff of the said borough, or of common paid such a sum of money to the use of the said borough, to be excused serving such offices, as has been fixed by the mayor, that he was bailiffs, and burgesses, or the major part thereof, in commonare not in- -hall, upon the application of the burgess desiring to be excused from serving such offices; which payment of money to be excused serving the said offices has been called passing offices. And further, that on the 11th day of January 1785, it was agreed by the mayor, bailiffs, and burgesses of the said borough, then and there assembled in common-hall, that Patrick Beales, named in the said writ of mandamus, might be admitted to the freedom of the said borough, upon payment of the sum of 30 guineas to the use of the said borough. And the said Patrick Beales, being then and there in the common-hall of the said borough, claimed to be sworn a burgess of the said borough, upon payment of the said 30 guineas. And the mayor, bailiffs, and bur That B. was not a burgess; that he was not eligible to the office councilman; and not elected; consistent returns. (a) R. v. Mayor, &c. of York, p. 5 vol. 66. S. P. gesses, The KING against The Mayor, &c. of CAM BRIDGE. gesses, then assembled in common-hall, on the said 11th day of 1788. January 1715, believing that the said Patrick Beales had then and there paid the said sum of 30 guineas to the treasurer of the said borough, or to some other person duly authorised by the mayor, bailiffs, and burgesses of the said borough, to receive the same to the use of the said borough, the mayor then and there directed the said Patrick Beales to be sworn into the office of burgess of the said borough; but the said Patrick Beales did not on the said 11th of January 1785, or any other time, pay the said sum of 30 guineas to the use of the said borough. And further, that afterwards, on the 12th of April 1785, it was agreed by the mayor, bailiffs, and burgesses of the said borough, then and there in common-hall assembled, that the said Patrick Beales should have leave to pass all offices under the bench; that is, should be excused from serving the offices of treasurer and bailiff of the said borough on payment of the sum of 10 guineas to the use of the said borough; but the said Patrick Beales did not, on the said 12th of April 1785, or at any other time, pay the said sum of 10 guineas to the use of the said borough. And further, that on the 16th of August 1787, being a grand common day holden in and for the said borough, a certain bye-law or order was propounded in the following words, that is to say: " Ordered by the mayor, bailiffs, and burgesses, " in common-hall assembled, that no person shall be eligible to "be elected into the office of common councilman, but such as "have served the offices of treasurer and bailiff; and that no "person, having been dispensed from serving such offices of "treasurer and bailiff, shall be eligible to be elected into the "office of common councilman, until he has actually served "such offices of treasurer and bailiff; any usage, bye-law, or "ordinance, to the contrary notwithstanding." Which said byelaw or order, on the 24th of August 1787, being a grand common day, was confirmed by the mayor, bailiffs, and burgesses, then and there assembled in common-hall; and by reason of the premises the said Patrick Beales was and is ineligible into the place and office of one of the common councilmen of the said borough of Cambridge. And further, that the said Patrick Beales was not duly elected into the said place and office of one of the common councilmen of the said borough, as by the said writ is supposed. And for these causes, they the mayor, bailiffs, and burgesses of the said borough, have not admitted, &c. Wilson 1788. U. of СамBRIDGE. Wilson took several objections to the validity of the return. The general doctrine respecting returns to mandamus is perfectly The KING well known and established. A return requires as much ceragainst The Mayor, tainty as an indictment; nothing therein is to be taken by intendment or inference. Now throughout this return none of the material facts are positively alleged, but the whole must be understood by intendment only. And even then, if the Court can take notice of them at all in the manner they are stated, the return professes to state two causes which are inconsistent, and therefore bad; for, first, it is meant to be inferred that Beales was not a burgess; and then, secondly, he is admitted to be a burgess; and it is urged, that he has not qualified himself to be admitted to the office of common councilman, by having served the office of treasurer and bailiff. But first, as to his not being a burgess: the custom is stated to be, to admit such person, &c. to the office of burgess, upon his paying a certain sum; on payment of which sum he is entitled to all the privileges of a burgess; and then it proceeds to state, that Beales had not paid it; from whence it is meant to be inferred, that he was not a burgess. But that is not sufficient; it ought to have been stated as a substantive fact, that Beales was not a burgess in such a manner as that the prosecutor might have taken issue on it; and it should not have been left to be collected by inference. Besides it is stated, that on payment of that sum he becomes entitled to all the privileges of a burgess; now non constat that he is not entitled to some of those privileges without payment of that sum, and amongst others to this one; so that, consistently with the non-payment of that sum, he may be eligible to the office of common councilman. The return then proceeds to state, that Beales was directed to be sworn in; therefore the Court must take the fact to be, that he was sworn in accordingly. Then if he were once in possession of his franchise, he became entitled instanter to all the privileges annexed to it and could not be removed from it without being evicted by a quo warranto information. If so, the corporation could not suspend him from the privilege of being eligible to the office of common councilman on account of the non-payment of that sum of money; for if that ever were an objection, it must have been an objection in limine to his becoming a burgess at all. But when he is sworn in, he is an actual burgess; and if the corporation could not divest him of his office, they cannot abridge him of the full exercise |