to sue for wages. If he does not perform his contract, although no action may lie against him, he will be liable to the statutable regulations applicable to masters and servants. Then the question arises, Whether the relation of parent and child destroys the capacity to contract? It is clear that it does not do so in the case of emancipated children, or of natural children, or of step-children, Rez v. St. Peter's, Dorset. (a) And yet if a step-child is capable (a) Post, pl. 291 of contracting with his step-father, the same mischief results as if his own father consented: the same observation applies to emancipated children. If there be only a pretended service the Court of Quarter Sessions ought to conclude that there was no contract of hiring, and to decide against a settlement; but if there be a bona fide contract, it produces new rights and new relations. It gives the father a new right of control, and the child a right to wages, which is beneficial to him; and it also gives to him a settlement in that parish where he serves under the contract. LITTLEDALE J. There is by law a species of service due from a son or daughter to the parent, which, as to the latter, is the foundation of the action of seduction, and there it is not necessary to prove actual service; and if there be any species of service due by law from the child to the parent, why may not the obligation of serving the parent be extended, by allowing him to hire the child at certain wages for a specific time? It is admitted that an infant may hire himself to a third person, but it is said, that being already under the control of the parent, and owing some services to the parent, the child cannot make a contract with him; but there is no reason why a child may not contract to render to a parent other services than those which are due in consequence of the relation of parent and child. That may be beneficial to the infant, and will, at the same time, also subject him to the statutable regulations applicable to master and servant. And if in point of law a child may hire himself, then the statute gives him a settlement resulting from the hiring and service. There may be some certain inconveniences resulting from our decision, but neither the common law nor the statute law say that such a contract shall not be binding. I therefore think that in both these cases a settlement was gained. My brother Holroyd, who has left the Court, desires me to say that he concurs in this opinion. — Order of Sessions quashed. III. Of the Contract of Hiring. 267. Rex v. Hamlet of Walton, E. T. 9 W. 3. Carth. 400. Two justices removed a boy of the name of J. from C. to the hamlet of W., which lies within the parish of C., and maintains its own poor. The Sessions, upon appeal, confirmed the order, and stated, that J. had been a foot-boy to Sir P. J., in the hamlet of W., for three years, or more, and had thereby gained a settlement there; that then Sir P. put him out to one T., a barber, who lived in C., but out of the hamlet of W., for one year, to learn to shave; that the barber was to have the benefit of the boy's work; that Sir P. gave the master some money to teach the boy to shave; that the boy accordingly lived with the barber in the said parish for one year; but that no notice of his coming was given by him to the parish, nor any warning from them to him. The question 2 Salk. 479. Skin. 671. Cald. 368. A hiring made chial place is A hiring cannot was, Whether this gave a settlement to the boy in the parish of C. as an hired servant, within the intent of the statute of 3 & 4 W. & M. c. 11. ? -The COURT: This is not such a hiring or such a service as is within the intent of the statute; because here was no reciprocal contract between the boy and the barber, and he had no remedy to compel him to serve: for every hiring within that statute must be reciprocal; but here the boy was in nature of a scholar, and not of a servant. - The order of Sessions was therefore affirmed. (a) T. T. 8 G. 1. Fol. 193. 268. Rex v. St. Peter's, Oxford, The pauper, M. N., was hired at C., an extraparochial place, on the 16th May 1717, to Mrs. C., the mother-in-law of Dr. C., the canon of Christchurch College. It was objected, that as this contract was made in an extraparochial place, it was not a contract of hiring within the words of the statute 3 W. & M. c. 11. s.6. which says, that if any unmarried person, not having child or children, shall be hired into any parish or township for one year, a service under such a contract shall gain a settlement. But THE WHOLE COURT held that the words "parish" and "township" were only put for example. 269. Gregory-Stoke v. Pitminster (b), M. T. 13 G. 1. MSS.The pauper, who was a young girl, was sent to by a relation, who told her, that if she would live with her she should have her meat, drink, washing, and lodging. The girl accepted the terms, and lived with her four years as a servant. It was insisted, that the girl gained a settlement within the statute of labourers 24 E. 3. c. 1.; for that this general retainer made a good hiring within that statute, though not within the statute of 3 W. & M. c. 11. s. 6. ; that the living four years amounted to a good retainer for a year ; that the statute of 24 E. 3. c. 1. extends to all servants and ap(c) See 5 Eliz. prentices (c); and that the actual entry into the service, after being sent to, and terms offered, is such an assent in the servant as amounts to a contract. BUT THE COURT held, that there must be an actual contract, where the servant is under no obligation to stay, and the contract must be mutual to bind the parties: this is no agreement, but an encouragement to the poor girl, that if she would live with the relation she would maintain her. - FOR(d) Ante,pl.267. TESCUE J. cited the case of Rex v. Walton (d), where Sir P. J.'s servant was put to a barber to learn the art of shaving, and after a year's stay it was held, that as there was no contract he did not thereby gain a settlement. (e) c. 4. A girl who resides with a relation in one parish, but works with a clothworker in The 270. Rex v. Wrington, M. T. 22 G. 2. Burr, S. C. 280. pauper, when about 13 years of age, went into Chew Magna, to the house of her aunt S.; and soon afterwards went into the parish of Winford, and worked with one N. W., clothworker, in the business of burling cloths, by a weekly hiring or agreement, at the another, in the weekly wages of 1s, 6d. in the winter, and 2s. in the summer. the Saturday in each week, W., when he paid the pauper her wages for that week, said to her, “ that she should come the week following;" which the pauper accordingly did, and renewed the contract for the week ensuing in the same method: the pauper business of burling cloths by a weekly hiring, is not a hired servant, 66 On (b) See Rex v. Dunton, post, pl. 281. continues to work week after week for a year and a half. continued to work with W. in Winford, in the manner abovesaid, for although she the space of one year and a half; but during all that time constantly returned in the evening, and lodged at her aunt's in C. M., and also resided with her aunt there on Sundays during the said time. On the last Saturday of the service, the pauper covenanted to serve W. for a year, for the wages of 17. 10s., and immediately entered into the service, and continued therein with W., in the parish of Winford, for 11 months next following; and then, upon some difference between them, they parted; and she was paid the full proportion of her wages for the 11 months.-LEE Č.J. and WRIGHT J., said, their only doubt was, Whether, on these first hirings, the girl was to be considered as a hired servant, or whether she was to be considered as a weekly labourer, precedent to the hiring her for a year?— But DENNISON J. said, he had no great difficulty; for he thought the Court should not go an inch further than they did in the case of Aynhoe. (a) This is a little girl (a) Vide post, hired to burl cloth: probably 20 such children were so hired. pl. 368. The hiring was for a week: she lay at home, and was at home on Sundays. This was certainly as a day-labourer; not as a servant in the family, and part of the family. The act of parliament plainly means a hired servant, who is part of the family wherever he lies. I know this clothworking business; and am, therefore, afraid of the consequences of extending these settlements too far. These clothworkers hire, perhaps, a hundred children, in different parts of the work; and it would be very inconvenient if the hiring any of them for a year, after some time of service under a weekly hiring, and their subsequent service of, perhaps, only a single week under that yearly hiring, should gain them a settlement. FOSTER J. thought the cases had been carried full far enough already; and had no doubt but the first hiring ought to be ejusdem generis with the last. Now a hired servant is always under the government, discipline, and control of the master, even on Sundays. But this child was not at all in this master's service either on nights or on Sundays.-The other Judges concurred. A hiring for a year cannot be inferred from a boy's being taken into a fa 271. Rex v. Weyhill, H. T. 33 G.2. Burr. S. C. 491. — R. Pyke, of W. M., took the pauper into his family, from charity, and gave him his meat, drink, lodging, and clothes, while he continued with him, which was about two years, in W. M., and four years in W. (to which parish Mr. P. and his family removed). Neither at or mily, supplied before the time of P.'s taking the pauper into his family, nor at with board and any time after, was there any contract between the parties in re- lodging, and lation to the pauper's service of Mr. P., or his continuance with made to run of him, or to any wages or other gratuity to be paid him. During errands, unless the pauper's continuance with Mr. P., he was employed in running of errands, and doing whatsoever Mr. P. or his servants thought fit to bid him: no wages were ever paid or given him. -THE COURT were clear that this was no hiring at all, no contract; but that he was taken out of charity, a child eight years old, to run on errands, and Rex v. and do whatever he was bid; and left Mr. P. when he came to be Berwick St. 14, and capable of doing more service. And it is expressly John, post, stated, "that there was no contract. (a)" Indeed, where there is pl. 290. a hiring stated, the Court will presume it to have been a regular (a) Vide Burr. S. C. No. 160. Rex v. Inhabitants of Berwick St. John, post, pl. 290. holden to be a hiring for a year, though the contract was not quite some contract appears. See Rex v. post, pl. 289. (a) See post, pl. 289. A negro slave brought into this country by the master does not gain a settlement by service with him here; for there is no contract for such purpose subsisting between them. S. C. Cald, 516, (a) De Jure Belli & Pacis, b. 2. ch.5. s. 29. part 2. (b) Carth. 396. 1 Ld. Ray.146. 5 Mod. 186. one unless the contrary appears: and that was the case of Wincaunton. (a) A general hiring was there stated; but here there was no hiring at all. 272. Rex v. Thames Ditton, E. T. 25 G. 3. EDITOR'S MSS.Two justices removed the pauper, C. H., from T. D. to C. The Sessions, on appeal, quashed the order, and stated the following case: The pauper, C. H., was bought in America by Captain H., as a NEGRO SLAVE, and by him brought to England in the year 1781. In the month of November 1781, Capt. H. went to live in the parish of T. D., and took the with pauper him; and she continued to live with him there in the capacity of his servant till June 7, 1783, on which day Capt. H. died. Soon after the death of her master she was baptized at T. D. by the name of Charlotte Howe, and she continued after his death to live with Mrs. H., his widow, and executrix, who afterwards removed to C.; at which place the pauper continued to live with her as before for five or six months, when she left Mrs. H.; during the whole of this time she was childless and unmarried. She was removed to C., as having served the last 40 days in that parish: the removal was from T. D. to C. — MR. PALMER showed cause: It is sufficient to support the order of Sessions to observe, that no hiring is stated. There is no case where the Court has implied a hiring; they have only implied a hiring for a year, where a hiring appeared, but was indefinite as to time. But it is manifest from the circumstances of this case that there never was any contract at all. THE COURT desiring to hear the other side, MR. LEE argued, that by fair construction of the statutes relating to settlement by service this case came within them. The principle of those acts was, that minute periods of service should not give a settlement, and bring a burthen on a parish. It must be where the party was under an obligation to serve for a length of time not less than a year. Slavery is defined by GROTIUS (a) to be an obligation to serve as long as the master finds maintenance. This doctrine of the law of nations was not contradicted by any authority in the law of England; such a perpetual contract to serve might exist in this country, and slavery was recognized by several statutes concerning the negro-trade. To show that the master's right to the perpetual service of his negro continued in this country, they cited 1 Black. Com. 127 and 425; and to prove the analogy between NEGROES and SERVANTS they relied on Chamberlain v. Harvey (b), where it was held, that trover would not lie for a negro, and that the master could maintain no action for taking him away, except an action pro quod servitium amisit. They said, the Court could not hold this to be no settlement without determining that a negro brought into this country was at liberty to leave his master at any time, which had never yet been determined; for the case of Somerset did not go so far. LORD MANSFIELD. The case of Somerset, the negro slave, goes no farther than to determine that the master of such a servant shall not have it in his power to take him out of the kingdom against his will; for the moment a man lands in this country he becomes a subject of it, and every subject of this country is entitled to the freedom of personal liberty. The Court in their determination on that case reasoned by analogy to the law of villenage, and I have tried many actions brought by negro slaves against their masters for wages; but I never thought myself justified by law in permitting them to recover. -THE COUNSEL FOR THE RULE answered, that certainly no wages were due, because there was no contract for them, but a settlement might be gained by service without wages; that although the term used in the statute was "hiring," and the contract in this case was a purchase, the meaning was in substance the same; where there was some reversion left in the owner, it was a hiring; where there was not, it was a purchase. The consideration paid to the seller included the wages for the whole life of the slave; the contract was made with the seller, and not with the negro; but there were several cases where one person may contract that another shall serve, as parish-officers, and the father of a minor. If negroes were to be considered as villeins, there was no reason to suppose them not objects of the poor laws; for although villeinage regardant be taken away by stat. 12 Car. 2. c. 24., villeinage in gross remained as before. If this pauper had gained no settlement, it would follow that all negroes could be maintained only as casual poor, and in that character they certainly would not be so well taken care of. LORD MANSFIELD. This case does not admit of an argument. The Poor Law is a system of many acts of parliament. It began in the time of Queen Elizabeth, perhaps before villeinage was out of use: villeinage in gross may not, perhaps, be now abolished; but none of those statutes apply at all to villeinage: the legislature never thought of it. To give this pauper a settlement, she must come within the description of a positive law. Her being black or a slave is no objection, but the statute requires a hiring: there is none here, and therefore the case is not within the statute. The order of Sessions was confirmed. 209 A boy living several years with his uncle, and working at his trade for his board, lodging, and clothes, but contract, does not gain a 273. Rex v. St. Mary, Guildford, E. T. 25 G. 3. EDITOR'S MSS.-T. F. having a derivative settlement in St. M. went, at the age of eleven or twelve, to live with his uncle, who was a tailor, in the parish of S. M., and worked for him, and learned his business. At the expiration of two years, his uncle proposed that he should become his apprentice, but they had some difference about it, and the pauper refused to be bound. However without any he continued to live with him, working in and learning his business till about the age of 17, and was provided with board, lodg ing, and necessaries. - THE SESSIONS thinking this a settlement in S. M., quashed the order of two justices removing the pauper and his wife from St. M. G. to St. M.-This case came on immediately after Rex v. Thames Ditton (a), and MR. SYLVESTER, (a) Ante,pl.272. who was to have shown cause, said, as the Court had declared in that case that a hiring was necessary, it was impossible for him to support this order of Sessions. - THE COURT said that a hiring was certainly necessary, and that this was clearly no settlement in S. M. - Order quashed. 274. Rex v. St. Matthew, Ipswich, M.T. 30 G.3. 3 T. R. 449. -About five years ago, the waiter belonging to S. R., who kept an inn in St. M., being ill, sent for the pauper, E. S., to assist him at the inn, where he stayed as helper to the waiter about six months, and then went away. The waiter being again taken ill, sent for the pauper to help him, which he did, and he continued in the inn as boot-catcher for 19 months, during which time he lodged and boarded there, and was to be satisfied by the S. C. Cald.521. A man went to an inn with the knowledge of the master, to assist the waiter, who was ill, and continued there, boarding and lodging, nine |