such notice be given, a good conditional hiring for a year. (a) Ante,pl.358. (b) Ante,pl.359. An agreement that a servant shall come for a quarter of a year at the rate of 20s. a year, and if he and his master liked each other, to appeared that no notice of dissolving or determining the said hiring or service was ever given by either the master or the servant; and that H. continued in his master's service in B. the whole year. It also appeared that H., at the time of the hiring, declared, that the reason of the hiring being made determinable at the end of any quarter upon such notice was, "that he would "not be hired so as to lose his former settlement.”—THE COURT, on the authority of the cases of Lidney v. Stroude (a), and Rex v. New Windsor (b), held it to be a good settlement at B. 361. Rex v. St. Ebb's, H. T. 22 G. 2. Burr. S. C. 289. — C. G. went to H., otherwise St. C., to be hired to T. W., who lived in and was an inhabitant of the said parish of H.; and being asked, What he would give? he said, he would not give him more than he gave to his former boy, which was 20s. a year. He was then hired in this manner: he was to come for a quarter of a year, and to have after the rate of 20s. a year; and if he and his master liked each other, was to continue on. He continued a year and a half over and above the said quarter, without any further or other hiring, and received his wages as he had occasion for the same. MR. NARES moved to quash these orders; for a conditional hiring is a hiring for a year, provided the condition be performed. Rex (c) Ante,pl.358. V. Lidney (c), and Rex v. New Windsor (d), accordingly.(e) __ So d) Ante,pl.359. that, upon the whole, the settlement is in H., and not in St. E.A rule to show cause was granted, and made absolute, no cause being shown. (g) continue, is, if the service comtinue, a good conditional hiring. A pauper was, by indenture, as a driver in a colliery, at the wages of 1s. 10d. for a good day's work, not exceeding 14 hours, and 2d. a day more when that time was exceeded; and he was to forfeit 10s. 6d. for every act of 362. Rex v. Byker, T. T. 4 G. 4. 2 B. & C. 114. - Upon an hired for a year the removal of W. G. and M. his wife, from the township of appeal against an order of two justices for the county of D., for H., in the said county of D., to the township of B., in the county of N., the Court of Quarter Sessions at D. confirmed the order, subject to the opinion of this Court, upon the following case. By an indenture, bearing date the 23d day of October 1809, and purporting to be made between J. P. of B., in N., of the one part, and the several persons whose names or marks were thereunto subscribed, of the other part, the said J. P. did hire and retain the several other parties thereto, and they did hire and bind themselves as workmen or servants, to be employed in a certain colliery for the term of a whole year, from the 21st day of January 1810, and to serve J. P. in the colliery for certain hire or wages in the indenture mentioned; and J. P. did covenant to pay to every driver, for every good and sufficient day's work, not exceeding 14 hours, in single-shaft pits, (and 2d. per day when that time was exceeded,) 1s. 10d. And the several persons hired and retained by the indenture did covenant with J. P. that each of them would, in their several stations, diligently perform and obey his orders and directions as to the manner of working the colliery, and work the colliery fairly and regularly, and as therein further expressed; or in default thereof, should forfeit and lose (to be retained out of their wages) the sum of 10s. 6d. for every act of disobedience; and also the sum of 2s. 6d. per day for lying idle upon each hewer, deputy-craneman, on-setter, sinker, driver, or off-handman, to be deducted as aforesaid; and for every workingday which they or any of them so hired and bound as aforesaid (e) See also Rex v. Atherton, ante, disobedience, and 2s. 6d. per day for lying idle (to be de ducted out of his wages). There was a proviso, that nothing in the indenture should be con-strued to oust the jurisdiction of the justices, or to prevent either master or servant from applying to pl. 360. (g) Vide Burr. S. C. No. 102. Rex v. Ilam, ante, pl. 356. a covenant, that in case the master about Christmas should wish to repair any engine, &c., the colliery, he belonging to might stop the workings for any period not exceeding seven days, without paying any wages to the pauper, unless employed in other work: Held, that this tional, and not an exceptive contract, and that the pauper gained a settlement by serving under it for the whole year. was a condi should absent themselves from their employment, or should neg- them in case of lect or refuse to fulfil and execute the whole of the business of an disputes; and usual day's work, unless prevented by sickness or some other unavoidable cause, the defaulters should forfeit and lose (to be retained as aforesaid) the sum of 2s. 6d. for every such default, refusal, or neglect; all which said forfeitures and penalties should be deducted and retained out of the wages or earnings of each offender at the first pay day next after the offence should be committed. And in the said indenture was contained a proviso, that the indenture should not, nor should any covenant or clause therein contained, be construed to extend to oust or exclude any justices of the peace from any jurisdiction or cognizance which the statute law of this kingdom hath given to such justices over masters and servants; but, on the contrary, that each of the said several parties thereto should be at full liberty, notwithstanding any thing therein contained, upon any breach of any of the before-mentioned covenants, to call for and require the aid and assistance of any justice or justices, to compel the performance, or punish any breach of such covenants, as far as by law they could or might if the said indenture had not been made. And it was further covenanted and agreed, that in case the said J. P. should think it necessary, at or about Christmas 1822, to repair, alter, or amend any engines or machines of or belonging to the said colliery, or to remove or prevent any obstructions or hindrance which might have happened to the same, or to do any other thing which he the said J. P., his executors, &c. should think needful to be done in the said colliery, or the working of the same; that then it should be lawful for him to stop the workings at all or any of the pits of the colliery for any length of time not exceeding in the whole the space of seven days, without paying or allowing any wages or sums of money to any of the several parties who should thereby be prevented from doing their daily work, save and except such of them as should be employed by him in any other work in and about the colliery, or otherwise, who should be paid or allowed reasonable wages for such his or their other work. This indenture was executed by J. P. and by W. G. the pauper, together with a great number of other workmen, upon the day it bears date. W. G. was retained and hired by the said indenture as a driver. He was at that time under age, unmarried, and without any child. At the time when the indenture was executed W. G. was in the service of J. P., at the colliery, and he continued in his service as a driver for a whole year, from the 21st of January 1810 till the 21st of January 1811, and resided during all that year in the township of B. There was no evidence, either that the pauper, W. G., had or had not incurred any penalty or forfeiture during his year's service under the indenture, or that any deduction had or had not been made from his wages. —BAYLEY J. The question in this case was, whether the hiring were conditional or exceptive. Many cases of this description are to be found in the books, between which the distinction is rather subtle, and at first sight not easily discovered. Adverting to them all, the proper distinction appears to be this; if the bargain be originally made for an entire year, and terms are introduced applicable to a continuance of the relation of master and servant during the whole year, but there is also a provision, that in a given event it shall A service for a year, though under different hirings, is good, if one of the hirings be for a year. be competent to the parties to put an end to, or suspend the service for a part of the year, still a settlement is gained if the service is actually performed for a whole year, and neither party avails himself of the condition. A conditional hiring is, for this purpose, the same as an absolute hiring, unless the condition is acted upon. An exceptive hiring is one by which the relation of master and servant will not subsist for the whole year, unless some further arrangement is entered into; and if by the bargain days or hours are excluded from the service, that is an exceptive hiring. It has been contended that here both days and hours are excluded, but we are of a different opinion. The pauper was hired by indenture, and it was agreed that the master should pay for every good day's work, not exceeding 14 hours, (and 2d. per day when that time was exceeded,) 1s. 10d. It was said that the pauper was entitled to absent himself at the expiration of 14 hours, and that the master could not compel him to work any longer. We are of opinion, that the time was only mentioned as the measure of the wages; that the contract does not impose any limit upon what might reasonably be required by the master; and that the relation of master and servant continued during the whole 24 hours. Upon the forfeitures, also, we think that the pauper might not, upon payment of them, be absent if he thought fit, but that they were inserted to enforce regular attendance; and this view of it is confirmed by the clause stipulating that nothing in the contract shall be construed to abridge the power of the magistrates. Another clause has been insisted upon for the appellants; that relating to the repair of the engine. If that was an exception, this was a contract for a year, minus seven days. But we think it a contract for a year, with power to the master to stop the work if he thought fit. Had he done so, the question would have been different; but that is not found. This, therefore, was a bargain for a year, with liberty to suspend the service, which constitutes a conditional and not an exceptive hiring. This distinction between conditions and exceptions is consistent with all the decisions. In the cases where a servant having liberty to be absent, has been held not entitled to a settlement, it will be found, either that the servant availed himself of the liberty, or that the time was necessarily excepted out of the original contract. This being a conditional hiring, and the condition not having been acted upon, the pauper gained a settlement in B. And the order of Sessions was therefore right. - Order confirmed. IX. Of several Hirings. The 363. Rex v. Overton, H. T. 10 W. 3. Burr. S. C. 549.pauper, B. B. was settled in O.; and on the 25th day of March contracted with one J. O., of the parish of S., for the wages of 1. to serve him from the said 25th day of March 1697, until Michaelmas then next following; and which time she served accordingly. At Michaelmas, J. O. contracted with her from the said Michaelmas for one year ensuing, for the wages of 1. 10s.; and she remained with him until some time in the month of April 1698; in which month, by mutual consent, she left her service; and he paid her the proportion of her wages that were then due. -THE SESthem very inac. SIONS Conceived that the pauper, by continuing more than one S. C. Fort.316. 255.3 Salk.257. whole year under this hiring, gained a settlement in the parish of curately reS. And THE COURT of King's Bench were of the same opinion; ported. for the service under the hiring for half a year, and the half See Burr, S.C. year's service under the hiring for the year, answers the end of the statute 8 & 9 W.3. c. 30. and is a good service for the year (a). a 550. by one entire contract; for hirings for half two successive a year each, is not sufficient. See Rex v. Lowther, ante, pl.344. 364. Dunsford v. Ridgwick, M. T. 9 Ann. Salk. 535.-The The hiring for pauper was hired as a servant to live at R. for half a year, and a year must be after that was hired again to live there for another half year, with the same person, and thereupon served a year in one continued entire service, but by several hirings.- PER CURIAM: It ought to be one entire contract, and one entire service; the one is required by the statute as well as the other. If a service under several contracts shall gain a settlement, one who serves by the month, by the week, or by the day, may, if he continue a year, gain a settlement; one may hire by the day for charity; but there is danger of being chargeable in hiring such a person by the year for such a term as a year it is not supposed a master would hire one, unless able of body, and so a person not likely to become chargeable. Also the CHIEF JUSTICE observed, that by the statute of Eliz. the retainer of servants was for a year; that 14 Car. 2. requires 40 days' stay, but that this was inconvenient; for by gaining a settlement in 40 days servants grew insolent; and that the latter acts, viz. 3 & 4 W. 3. c. 11. and 8 & 9 W. 3. c. 30. do but turn the 40 days' service into a year's service, and the hiring to be a retainer for a year, according to the statute of Eliz. 365. Wichford v. Bretford, Lent Assizes, Salisbury, 11 Ann. Fort. 311.-A person, five days after Michaelmas 1709, was hired to B. from the said five days after Michaelmas 1709 to Michaelmas 1710. On Michaelmas-day 1710 he departed from his master's service, and was paid his wages to that time. On the next day after his departure (b) he returned, and covenanted with his said master to serve him there for another year; but a month or five weeks before the end of the last year, he departed from the service, and the master deducted out of the last year's wages Ss. for the month or five weeks that was wanting of the year. Powis, Judge of Assize, held this to be no settlement, because here was no hiring for an entire year, nor service for a year pursuant to the hiring. The service under a hiring from five days after Michaelmas to the Michaelmas service under a hiring from three weeks after Michaelmas to Michael mas, may be joined to a ser the day after the servant's departure. 366. Brightwell v. Westhalley, E. T. 1 G. 1. EDITOR's MSS. A service on a The pauper, J. S., was hired to serve from three weeks after Michaelmas to the Michaelmas then next ensuing, which time he regularly served. On the ensuing Michaelmas he was hired again by the same master into the same place, to serve him for a year; but under this second hiring he only served for 11 months. -THE COURT: By the statute of the 3 W. & M. c. 11. a hiring for a year, and a service of only 40 days under it, was sufficient for the purpose of gaining a settlement; but by the 8 & 9 W. 3. c. 30. the service must be during the space of one whole year. Now it appears from the facts of the present case, that the words of this last statute are satisfied, for there was a hiring for a year, and a (a) Same point precisely determined in the case of Rex v. South Moulton, Lord Ray. 426; a case the records of which cannot be found, but which, Burrows says, may possibly be the same (6) See Rex v. Ellisfield, post,pl.375. vice of 11 months under a new hiring for a year. 1 S. C. Foley, 143. Sess. Cas. 92. 10 Mod. 198. Andrews, 63. See 5 T. R. 100. (a) Ante,pl.363. Distinct and separate hirings for 11 months each cannot be connected so as to form a hiring for a year. S. C. Foley, 137. 10 Mod. 392. Cald. 133. service for a whole year; and although that service was not under the hiring for a year, yet as the service was never discontinued, we think upon the authority of Overton v. Steventon (a), and upon considering the intent of the legislature in the framing of the former statutes upon this subject, that the latter statute is answered, and that the pauper gained a settlement by this hiring and service. 367. Rex v. Haughton, H. T. 4 G. 1. Str. 83.-J. E., about five years before the removal, was hired with R. T., of H., from Ash-Wednesday until Christmas, and served him that time. He then went away from him, and staid with his father in R. for about a week. He then returned to R. T., and was again hired with him for 11 months, and served him the said 11 months. He then departed from T., and took his clothes with him, and was absent one week. He then returned to T., and was hired with him for 11 months, and accordingly served him, and then left that service, and went to his father in R., and staid about one week. E. then served one J. S., of the parish of H., for about three weeks. He then returned to R., where he staid for above a week, and then returned to J. S. to H., and hired himself for 11 months; and did accordingly serve within a fortnight or three weeks of the last 11 months, when, by agreement with S., to avoid a settlement in H., he left him, took his clothes, and went into the parish of G., and there continued about a week. E. then returned to J. S., and continued with him so long as to make up his service of the last 11 months. Three weeks before Christmas, E. hired himself again to S. for another 11 months, and served him from that time till within three weeks of Michaelmas following, and then came away, and married. THE CHIEF JUSTICE: This is plainly a design to save this parish, and I suppose all the parishioners have agreed never to hire any servant for a year. The ground of the statute relating to servants was, that a person who had strength of body enough to hire himself out for a year, would, when that year expired, be able to support himself; and the same reason holds in the case of apprentices. I am afraid we cannot interpose in this case; but it is proper the legislature should.— PRATT J. We must take the law as it stands, and follow former resolutions; for the Sessions have ever since for the most part acted pursuant to those resolutions; and if we should do otherwise, it will introduce the utmost uncertainty and confusion; and little respect will be paid to our judgments, if we overthrow that one day which we resolved the day before. The statute expressly requires a hiring and service for a year; and it is admitted that if Rex v. Iving there was but one hiring and service for 11 months, that would hoe, post, pl.414. give no settlement; and why any subsequent hirings of the same nature should gain him one I cannot imagine. The reason of hiring servants at first for 11 months only is, because the servant may prove idle and good for nothing, and the master, as a prudent man ought to do, avoids bringing a charge upon the parish till he has had experience of the diligence and fidelity of his servant; and when he has had 11 months' experience of his diligence and fidelity, then, if he hires him a second time, that is grounded upon his good service during the former hiring; but still the second hiring must be as full as if the first hiring were out of the case. And if the first hiring were out of the case, then the second would stand in the |