A B remained two years with CD upon these terms: Held, that there was no yearly hir

ing, and, therefore, no settle ment gained by the service.

A pauper was hired three weeks before Martinmas, at 41. wages, and received 1s. earnest, but no period was mentioned for

duration of the

service. The pauper went

into the service

a week after

Martinmas, and upon the same day his master

told him that it was not the custom to hire

servants in that

than 51 weeks,

rather more than two years in P.'s service in the parish of C., and was supplied with meat and clothes. The pauper's father did not hire his son to P., and believed that the bargain was only for meat and clothes. The Court being of opinion that such service in C. was not sufficient to give the pauper a settlement there, confirmed the order as aforesaid. ABBOTT C. J. It must be admitted that a general hiring is a hiring for a year, unless something appear to rebut the presumption. Here the pauper might have left at any time, and that completely negatives the idea of there having been a hiring for a year. - BAYLEY J. In Rex v. Trowbridge, which was decided in 1816, but is not reported, it was held that a hiring " for as long a time as the pauper pleased," was a hiring at will, and excluded any presumption of a yearly hiring. This is a similar case, and I am therefore of opinion that no settlement was gained under the service stated. - LITTLEDALE J. concurred. Rule discharged.

66

286. Rex v. Bottesford, E. T. 6 G. 4. 4 B. & C. 84. Upon appeal against an order of two justices for the removal of W., and M. his wife, from Bottesford to East Bridgford, the Court of Quarter Sessions quashed the order, subject, &c. The pauper, W., was hired at the Bingham Statutes, which happened about three weeks before Martinmas 1818, to serve one H., of East Bridgford, as a servant in husbandry, for the wages of 4., and received 1s. earnest; but no time was mentioned for the duration of the service. He was to go into the service about a week after Martinmas, at the regular time for husbandry servants to enter their places. The pauper, who was the only witness examined by the respondents, stated that he entered into the service a week after Martinmas 1818; that on the same day on which he arrived at his master's house his master said to him, "It is not the custom "to hire servants in this parish for more than 51 weeks, which I forgot to mention to you at the time I hired you at the Bingham "statutes; and therefore, if you have no objection, I must hire you "afresh for 51 weeks, and give you another shilling for earnest ;" parish for more when the pauper accepted of such earnest. The pauper was never out of H.'s service from the first moment he came upon the premises, and remained therein at East Bridgford, until the day after Martinmas 1819, when he quitted his place along with other servants, having first received his wages of 4. ABBOTT C. J. I think the conclusion drawn by the Sessions was right. I agree that originally there was a contract operating as a hiring for a year, but the service under it was a service commencing a week after Martinmas. It is stated in the case that the pauper was hired three weeks before, but that he was to go into the service a week after Martinmas. There is nothing to show that the service was intended to commence sooner. Assuming that there was a hiring for a year, to commence a week after Martinmas, it is quite clear that there had not been a year's service. Then, has the master dispensed with the service for the last week, or was the original contract rescinded? It appears that on the same day on which the pauper arrived at his master's house, the latter said to him, "It is "not the custom to hire servants in this parish for more than 51 "weeks, which I forgot to mention to you at the time I hired you at "the Bingham Statutes; and therefore, if you have no objection, I held, that there must hire you afresh for 51 weeks, and give you another shilling

that he forgot to mention it at the time he

hired him, and, therefore, that if he had no objection, he would hire him again for 51 weeks, and gave

him another shilling for earnest. The

pauper accepted it, and remained

in the service till the following Martinmas. There not having been a

year's service,

the Sessions

"for earnest;" when the pauper accepted of such earnest. I con
sider that to have been a dissolution of the original contract, and
a substitution of another. If this amounted to a fraud (although I
I have great difficulty in saying what is fraudulent conduct in this
respect), the Sessions ought to have found fraud. They have not
done so. I perhaps should not have interfered to set aside the
decision of the Sessions if they had drawn a different conclusion,
but I should not have been so well satisfied with it. - BAYLEY J.
I think this was a point for the decision of the Sessions, and I wish
that the justices at Sessions would understand that it was their
duty to determine questions of fact, and not to send them to this
court for decision; they thereby put the parties to unnecessary
expence. I agree that there may be a dispensation with the
service at any period of the year, but whether there was so or not
was a question of fact which ought to have been determined by
the Sessions. I cannot say that they have improperly said there
was not. Had they found that there was a contract of hiring under
which the service was to commence at Martinmas, and the servant
by leave went to the master's service a week later, the Court
might have come to a different conclusion. So if there was originally
a contract for a year that might be dissolved. Whether it was so
dissolved or not, was a question for the Sessions. If this was a
fraudulent agreement, the Sessions ought to have found the fact
of fraud. The question in this case was for the Sessions, and I
cannot say that their determination is wrong. HOLROYD and
LITTLEDALE Js. concurred. Order of Sessions confirmed.
287. Rex v. Warminster, M. T. 7 G. 4. 6 B. & C. 77. — Upon
an appeal against an order of two justices, whereby W. M. and his
wife and children were removed from H. to W., the Sessions
firmed the order, subject, &c. The pauper was born a bastard in
the parish of T. G. When about 25 years of age he hired himself
to J. T., a solicitor of W., as a gardener. At the time of the
hiring J. T. asked the pauper what he should give him a week;
the pauper asked 201. a year wages, which J. T. refused to give,
but said he would give 6s. a week for the winter, and 9s. a week
for the summer, which the pauper agreed to take. He was to be
in J. T.'s house. Under this hiring the pauper served more than
a year, living in the house. He and his master then came to a
fresh agreement for weekly wages without board, and about a
week afterwards J. T., upon detecting some irregularities among
his servants, discharged the pauper without notice. J. T. made
at the time, in a book kept for that purpose, entries of the several
facts as they occurred, which were as follow: "W. M. agreed
"with him as a gardener, into house, at 6s. a week in the winter,
" and 9s. a week in the summer. Came Monday 2d of November
"1818. Agreed with him 6th of November 1819 (which was a
Saturday) to give him 8s. a week winter, and 9s. in the summer.
"4th July 1820, went out of house as labourer at 18s. per week, and
left my service shortly after." During the service under the first
hiring the pauper on one occasion gave his master a month's notice
of his intention to quit, but the notice was not acted upon. The
wages were accounted for weekly, but paid occasionally, as they
were wanted and applied for by the pauper. The question was,
Whether there was a hiring for a year in W. or not? ABBOTT
C.J. The cases cited (a) are decidedly in point; but without them

con

church, post,
pl. 327.
Rex v. Dodder-

Rex v. Puckle- there is sufficient in this case to show that the master never intended to hire the pauper for a year. To a question asked by him as to the wages the pauper expected per week, the latter replied 201. a year. The master refused to give that, but offered a certain weekly sum, which the pauper accepted. That clearly negatives the supposition that a yearly hiring was intended. Order of Sessions quashed.

hill, ante, pl. 142.

A boy goes into service without

any express

hiring, and his

master tells him that if he stayed

a year he would

hiring for a

year.
S. C. 2 Sess.
Cas. 188.

IV. Of general Hiring.

288. Wandsworth v. Putney, E. T. 13 G. 2. MSS. A special order of Sessions stated, that A., the pauper, at 14 years old, went to live with F., in W., in 1726, where he had meat, drink, and lodging; that F. bought him nine shirts; that in about six weeks or two months after his first coming, F. told him that if he stayed a year, and behaved himself well, the next year he would give him give him a livery a full livery and wages: that afterwards he lived a year and four and wages. months with F.; that he lived in the whole with F. in W. one year This is an and six months, and then parted from F., and received from S., impled general F.'s partner, 17. 11s. 6d.; and that there was no other contract for hiring appeared, or payment of money, otherwise than as above; the Sessions allowed the appeal of W. parish, and quashed the order of the justices for the removal from P. to W.-CHIEF JUSTICE: There is no doubt at this time of day to be made, but that in order to gain a settlement there must be a hiring for a year. The question is, Whether, in point of construction of the fact returned in this order, it does not amount to a hiring for a year? It is not stated in the order that there was an express hiring, and it is objected that this cannot be considered as a hiring, which imports a contract: for that nothing is said in this order of the assent of the boy. But the question is, Whether the contract afterwards is not an assent in point of fact, as much as if he had (a) Post, pl. 359. assented at the time? In the case of New Windsor (a), the order stated, that A. was hired in August 1731 to serve B., but was not hired for any determinate time, and that she was to have 5l. a year wages; that she was to be one month with B. upon liking: and that B. might discharge her at a month's warning, or on paying her a month's wages: this is all that was stated to prove a hiring for a year; for, as to the service, it is immaterial whether it was one or several hirings; and by Lord Hardwicke C. J. et TOT. CUR. this did amount to a hiring for a year; and in that case was cited (b) Post, pl. 358. the case of Lidney. (b) A. was hired for a quarter of a year, and if the servant and master liked one another, the servant was to continue for a year, and to have 31. wages; that she continued a year, and it was held a good settlement: now these cases seem to be very strong, that it is to be considered a hiring when the conditions are performed; for if he behaved well he was to have an additional reward, for he had a reward before, which was his meat, drink, and lodging, and the nine shirts: therefore, upon these authorities, I think this is a hiring for a year within the statute; for if we go only according to the strict words, that a man must hire expressly for a year, we shall defeat a great many settlements; and as this was a conditional hiring, and the condition performed, I think it is an absolute hiring for a year. PAGE J. This, before the promise, was no hiring, only he was taken upon charity, and

afterwards the master promised, if he behaved well, he would do so and so: this seems to me not to be a hiring, but only a promise of reward. CHAPPLE J. This is certainly a hiring, but there is some doubt for how long: the act of parliament requires a hiring for a year. At first he is under no contract, but has meat, drink, and lodging, during his continuance with F.; and F. tells him, that if he staid a year and behaved well, the next year he would give him a full livery and wages. Now, it seems to me, the boy was at liberty whether he would stay or not, and there was no obligation upon him to stay a year; he might if he would, and if he did stay and behave well, then the next year the contract was to take place: this is a contract by his staying the year; but there is no service for a year under any contract; here was a hiring for a year: service may be under different hirings, but it must be under some contract or contracts, and for a year; therefore, as this contract did not commence till the next year, I am in a doubt whether this is such a hiring and service for a year as the act requires. CHIEF JUSTICE: I apprehend, that if there be a contract for a year, it is no matter whether the service is under the particular contract; for all the law requires is, that he shall be a hired servant; and the reason is, because he shall be entitled to a settlement, if any body will put such a confidence in him as to hire him and the reason he is entitled to a settlement on account of his service is, because of the benefit the parish receives by his labour: the cases are, if one be hired for half a year, and serve the half year, and afterwards is hired for a year, and serve half that year, it will be sufficient if he serve a year in the whole. (a) – (a) See the PAGE J. He was not a servant under any hiring for a year. adv. vult.-This case being argued again, the CHIEF JUSTICE said, It is no where stated that the boy was a servant, but only that he lived with F.. this is not a proper manner of stating the fact they should state whether he was a servant or not: indeed, I have no great doubt but he was there as a servant. The main question is, Whether here is sufficient for the Court to say this is a hiring for a year? There is no doubt but there must be a hiring for a year, and a service for a year, to make it a settlement. The statute 3 & 4 W. & M. c. 11. s. 7. says, that "If any unmarried person, not having a child or children, shall be lawfully hired into any parish or town for one year, such service shall gain a "settlement without notice." The construction of the act has always been, that if one is hired for a year, the words such service are answered by a service for a year, though it is not pursuant to the hiring; that is, any service where there is a hiring for a year. By the subsequent act 8 & 9 W. 3. c. 30. they do not gain a settlement unless they continue in the same service for a whole year: this has been held an explanatory act, and though it is to be construed strictly, yet not so but that the intent may be answered: so, where a servant is assigned to the assignees of a farm, that is considered as the same service, being under a contract whereby

66

Cur.

cases of service under several hirings, post, sect. ix.

he is bound for a year. (b) The question then is, Whether this is (b) As to service a hiring for a year? I shall take it that he was there as a servant, with different and as if a service had been stated: if it is not to be considered masters, see in that way, the order must be sent down again to the Sessions: post, sect, xi. this seems to be the common and usual way of hiring, a general retainer of a servant, though there is no particular time agreed,

and a hiring for a year; then it is that F. told him, if he stayed a year and behaved well, the next year he would give him a full livery and wages; he comes and serves him. This must be con. sidered as a hiring for a year, though not particularly said so, and he staid with him above a year after this; so that is a service for (a) Post,pl.358. more than a year. In Rex v. Lidney (a) there was no hiring for a year, only for a quarter; and, if they liked, she was to continue for a year, and to have 37. wages; so there was no express hiring for a year, but for a quarter only; and there the servant liking and continuing, it was determined that it was a hiring for a year. So (b) Post, pl.359. in Rex v. Windsor (b), it was no express hiring for a year, only hiring to serve B., and to have 5l. a year wages. As here is an agreement to give a servant livery and wages, I do not know that it is necessary, in order to make it a good hiring, that the quantum of wages must be agreed: if the words, that " he would give him livery and clothes," are a retainer, this is a good hiring for a (c) Co. Lit. 47. year. (c) Upon these cases of hiring we must consider these contracts, which do not specify any time; but where it is a hiring generally, it is to be understood as a hiring for a year. If this is a good hiring for a year, then there is sufficient to make it a settlement, for there appears to be a service for a year, taking it that he was there as a servant : I confess, that is not clearly stated, but they have specified the livery and wages, and this looks like a service.-PAGE J. I am of the same opinion; a hiring generally is to be taken for a year, without mentioning the year particularly. -CHAPPLE J. I think this a hiring for a year; it was, if he staid a year and behaved well, the next year he would give him a full livery and wages: here the year is specified; and he lived with him 16 months afterwards: so that this seems to be a plain contract, as the event did happen, that he did live with him for a year, so the hiring is good: as to the service, it is not material that we should be informed when the first contract began or was determined, so that there clearly appears to be a service under some contract; the year shall commence from such a declaration of the master, and he served a year above that. WRIGHT J. There is a doubt whether this is a hiring; but the question is, When it is to commence, whether from the time of the discourse, or from the end of the year? and the whole depends upon that, for there is no hiring for the first year, and so it is no service at all unless it is under some hiring, contract, or retainer: next year was the year after that in which he was to stay and behave well, so that, after the commencement of the next year, he only served six months, and so there is no service for a year under a hiring; for in Lidney v. Stroude, and Windsor v. Wickham, there were actual hirings stated. I own I have some difficulty to collect a hiring from this order, for the first year; there is no doubt but that it is a hiring upon the words, "next year he would give him a full livery and wages;" but if there is no hiring for the first year, there is no service for the first year: and so a defect of service, it being only six months after the first year: therefore, as at present advised, I think this is not a settlement. - CHIEF JUSTICE: If one is hired from Michaelmas to Christmas, and serve that quarter, and then is hired from Christmas to Christmas, and serves three quarters of that upon the second hiring for a year, this is a good settlement, for it complies with the act, being hired for a year into a parish (a);

(a) See post, $9.

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