A pauper, before the expiration of her apprenticeship, hired herself and served for 1 for a certain time, as a reward for his labour; a strange idea, if examined; because somewhere or other he must at any rate be maintained if he be in want of it. I know not how to state this as a question upon which any doubt can be made. The pauper was hired by the week: nothing was said about Sunday; it is very seldom that there is: Why then is that day to be excluded? If a servant be hired for a year, nobody doubts but that Sundays are included. Then why not included in a weekly hiring, if no exception be made? The Sessions have found that there was a hiring by the week, which must mean the whole week. There is nothing stated to show it was otherwise intended. The pauper was paid sometimes on the Saturday, sometimes on the Sunday; and whenever the master ordered him to do any work on the Sunday, he did it. What is to be concluded from thence, but that it was his duty to do so. How do these facts show that he was not under the master's control on the Sundays as well as other days of the week? In Rex v. Wrington, it appeared from the circumstances that Sundays were excluded. But it is said, that the services cannot be joined, because they were not ejusdem generis. I really know not what that means, nor where the line is to be drawn. Suppose a postillion was made coachman; would those be deemed services ejusdem generis? It is said, that he was first an outdoor servant and then a family servant: but I do not know what difference that made in his services. Upon the whole, I cannot do better than adopt what the justices below have done : they have determined that there was a continuing service for a year and a hiring for a year, and that he gained a settlement; and I think they are warranted by the authorities in that conclusion. GROSE J. First it is objected that the servant was not under the control of his master the whole year. Secondly, that the services were not ejusdem generis, and therefore cannot be joined. As to the first, it is said that Sundays were not included in the weekly hiring. But why not? The hiring was by the week, and nothing was said about Sunday: and he did whatever his master bid him do on that day. What are we to collect from thence, but that the parties considered that Sunday was included? and the justices have, by their order, found that it was. Then 2dly, as to the services not being ejusdem generis; under both contracts the pauper was a servant in husbandry, only boarding in the one case out of the master's house, and in the other boarding in it. Then what is this, but the same sort of service throughout? - LAWRENCE J. assented. LE BLANC J. I cannot see upon the facts stated, that the service under the one hiring was of a different nature from that under the other. Order confirmed. 385. Rex v. Dawlish, H. T. 58 G. 3. 1 B. & A. 280.-Removal from C. H. to D. Order confirmed, subject, &c. The pauper, by indenture dated September 3, 1804, was bound apprentice by the parish officers of B., to R. P. of that place, till she should attain the age of 21; whilst under this indenture she served J. B. with R. P.'s express consent, for two years in the parish of D., after which, in May, 1812, she hired herself as a yearly servant to Mrs. B. of C. H. for 47. a year. In the September following the indentures expired. At the end of her pired, and then year, the pauper again hired herself for another year to Mrs. B., hired herself to and served 10 months under this last hiring. There was no in one year, the last four months of which were after her inden tures had ex terruption between the two services. The first year's service with Mrs. B. was without the knowledge and consent of the master. LORD ELLENBOROUGH C. J. If this were res integra, there might be some difficulty in admitting the principle that a service without a contract might be coupled with service under one, so as to gain a settlement, but that having been decided, this case ranges itself under the same class. Here, after September 1812, when the incapacity ceased, the pauper became a regular servant to Mrs. B. There is no interruption in that service, and she continued there above a year after that time; she therefore gained a settlement at C. H. BAYLEY J. concurred. ABBOTT J. The first contract was either valid or void; if valid, then there is a good hiring and a good service; if void, then the first year's service will be a year's service under no contract at all, which, according to the argument, it is admitted may be coupled with the service under the second hiring. In either case the settlement is at C. H.-HOLROYD J. concurred. Order of sessions quashed. - the same person for another year, but served Held, that the only 10 months: first service (although without the consent or knowledge of the master), might be cou pled with the service under the last contract, and that the pauper thereby gained a settle ment, A service under a hiring for 51 weeks may be service under a 386. Rex v. Fillongley, H. T. 58 G. 3. 1 B. & A. 319. - Removal from C. to F. Order confirmed, subject, &c. The pauper being settled in the parish of F., previous to Old Michaelmas, in the year 1812, was hired by one W. H. of A., from the then coupled with a next Old Michaelmas, for a year, at 77. 10s. wages; at the same previous hiring time the said W. H. said to the pauper, that he did not know the for a year, so as custom of the parish as to hiring for a year or 51 weeks; that to confer a he would inquire, but he believed it must be for a year, and hired settlement. him for a year. The pauper entered into the service in pursuance of this contract, three or four days after which W. H. (having previously to the pauper coming into his service ascertained that the practice of the parish was to hire for 51 weeks) asked the pauper whether he would consent to the hiring being for 51 weeks, to which the pauper consented. He continued in Mr. H.'s service until a week before Old Michaelmas in the next year, when the said W. H. paid him the 77. 10s. for his wages, and asked him to stay on till Old Michaelmas, which he agreed to do on being paid for it; he staid till Old Michaelmas, and received 1s. 6d. for that time. LORD ELLENBOROUGH C. J. If the statutes are to be strained in any respect, it seems to me that the mind revolts much more from coupling a previous service with a subsequent hiring for a year, than from the conclusion to be drawn in the present case. I think this case, therefore, within the limits of the former decisions. If it were now for the first time under our consideration, I should be disposed to pronounce a different judgment, but the decisions are so numerous upon the subject, and we should overturn so many settlements if we were to overrule them, that I feel myself bound by their authority to hold this to be a good hiring and service.- BAYLEY J. I am of the same opinion, upon the ground of the authorities alone. There is in this case a hiring for a year, and a service for a year, and that according to the decisions will be sufficient to confer a settlement. ABBOTT J. I am of the same opinion, and I think that it is better to abide by the fixed and settled rule of construction given by the decisions, than to introduce any new questions by departing from them.HOLROYD J. concurred. Order of - Sessions quashed. The father of a pauper, aged 14 years, agreed by parole to give a shoe.. maker 17.1s. for teaching his trade to the pauper for 12 son served the that period, the maker for 12 months, mak ing shoes at 3d. per pair the this latter 387. Rex v. St. Mary, Kidwelly, E.T. 5G. 4. 2 B.& C.750.— Upon an appeal against an order of two justices for the removal of W. W., his wife and children, from St. M. K., in C., to L., in the same county, the Sessions quashed the order, subject, &c. On the trial of the appeal, the appellants admitted that the legal settlement of the pauper, W. W., had been in the parish of L., but contended, that he had gained a subsequent settlement by hiring and service. The appellants proved, that when W. was months. The about 14 years of age he lived with his father, in the parish of St. I., in the county of C., and being desirous of being apprenticed to a shoemaker, his father agreed with one J. T., a shoemaker, in the parish of St. I., to give him 17. 1s. for teaching his son, the pauper, the trade of a shoemaker, for 12 months, the father finding the pauper lodging, and every thing else during that time. The pauper served the whole 12 months under that agreement. There was no indenture or writing, but the pauper considered it as an apprenticeship, and his father and master treated and spoke to him as an apprentice during such 12 months; and his father and master told him there was 17. 1s. paid for teaching him the trade. The pauper's father, at the end of the year, came to an agreement with T., that the pauper should work with T. for 12 months, making shoes at 3d. per pair the first half year, and at 4d. per pair the remaining half year. The pauper worked with him about six months under that agreement, and then went away and worked at several places, until his marriage, which happened 1785. He soon afterwards removed to the parish of St. M.BAYLEY J. The question in this case is, Whether a settlement has been gained by hiring and service? In this case there was a contract of hiring, but, under that contract, there was only a service for six months. If, however, that service can be connected with the service of the preceding year, then a settlement was gained in the parish of St. I. Now, in order to gain a settlement by hiring and service, the service must be under a contract, creating the relation of master and servant. Here, the first contract created only the relation of teacher and scholar, and the service under it not being under a contract of hiring, cannot be coupled with the subsequent service. Rex v. Bilborough (a) is an authority lation of teacher in point. There the master agreed, by parol contract, to teach and scholar, and the pauper to make stockings during the year, for which he was to receive 21. 2s., and the pauper was to have his earnings, paying his master for the use of the frame, &c.; and the pauper continued in whole year's the service a year and a half, and it was contended, that the service,required pauper gained a settlement by hiring and service; but the Court said that the pauper never contracted to serve the master, and that the only agreement was, that the master should teach the pauper for a year. In the present case, there was no obligation on the part of the pauper to serve the master, nor could he have been punished for refusing to do so. The relation existing between them was that of teacher and scholar. Now, although it be clear that services under different hirings may be connected, so as to (a) Ante,pl.282. complete the year's service, yet, the whole of the several services contituting the year's service, must be under a contract or contracts, creating an obligation to serve. In this case, there was not any obligation on the pauper to serve under the first agreement. That service, therefore, not being a service under a contract that this latter service could not be con nected with the service of the former year, so as to give a settlement,inas much as the first agreement created the re not that of master and servant, and the to confer a settlement, must be under a contracts creating the relation of tract or con master and servant. creating the relation of master and servant, cannot be connected X. Of Service in different Places. All 388. Rex v. Ashton, T. T. 12 A. MSS. The pauper was hired for a year in the parish of A., where she served for half a year, and then the master and she removed to the parish of P. to another farm, where she continued the rest of the year. PARKER C.J. Before the making of the 13 & 14 Car. 2. no person was removable, nor by that statute after 40 days are expired. But by the 3 & 4 W. & M., such 40 days are to be computed from a notice in writing, which must be published in the church. this, however, extended only to such persons as were removable. But a servant coming into a parish with his master is not removable. The act 3 & 4 W. & M. goes on to make a farther provision, that any unmarried person, &c. being lawfully hired into any parish for a year, such service shall be adjudged a good settlement. As it stood upon this act, there was a queere what was the meaning of the words, "such service;" whether such service should relate to the contract for a year, or to the 40 days? But the 8 & 9 W. 3. clears up that point, that the words "such service" were to relate to the contract, and to prevent persons running away from their service, but it cannot relate to the 40 days. So that if a person be hired to a master in one parish, and go with him and serve him 40 days in one, and go with him into several others, and serve 40 days in each, and serve his master for one whole year, that parish in which he continues last for 40 days before the end of the year, shall be the place of his settlement; but if he run away from his master during the space of that year, he gains no settlement at all. And the reason why the 40 days' residence gains a settlement is, because he comes there with his master, and you cannot remove him or her from his or her master; and, therefore, being once so far settled that they cannot be removed, that is accounted a settlement. It would be the hardest casc imaginable upon servants who come to London with their masters, and live one half of the year in London, and the other half in the country, to be incapable of gaining any settlement at all, which can be done upon no other construction of the statutes. - BY THE COURT. The settlement is at P. A service of half a year in one parish, and half a year in another parish, with the same master, is sufficient, S. C. Foley 188. 389. Rex v. Eldersley, M. T. 4 G. 1. MSS. A. hired himself If a servant be for a year to be warrener, in the parish of E., in a warren there, hired to two masters in dif to joint occupiers of it who lived in two parishes, distant from the ferent parishes, parish of E. He dieted and lodged for eight weeks with one of the occupiers; and for the rest and last part of the time in the warren. -PER CURIAM: His settlement is in E. he shall be settled where he lodges. If a house stand two-thirds in 390. Feversham v. Gravenny, T. T. 5 G. 1. Fort.221.- A maid was hired for a year to a master, and served for a year. The one parish, and house stood in two parishes. The master lay in the parish of A., and all the service was done to the master in A., but the maid lay in the parish of B., in the same house. - THE COURT referred it to EYRE J. on the assizes; and he conferred with two other Judges, and all three were of opinion that she was settled in B. where she lay. one-third in another, a servant is settled in that in which she lodges. S.C. Foley, 198. A servant hired for a year by a lodger in an extraparochial place, who goes with her mistress into an adjacent parish, merely on a visit, gains a settlement by serving the last 40 days in such parish. S. C. Foley, 193. Stra. 524. 2 Sess. Cas. 103. Alton, post, 280. where it is said by Lord Mansfield that none of the reporters have stated this case accurately. But note, the report in Barrow is tran scribed from the original record, in con 391. Rex v. St. Peter's, Oxford, T. T. 8 G. 1. Burr. S. C. 422. The pauper, N., was hired at Christchurch, an extra-parochial place in Oxford, on the 16th May 1717, for one year, to Mrs. C„, who then lived, and ever since hath lived with her son-in-law, Dr. C., canon of Christchurch College aforesaid, as a sojourner or boarder; and continued in her service there till the month ofin the same year; when Mrs. C. went upon a visit to her son, Mr. F., in the parish of Fawley, where she continued three months upon the said visit, and N. with her in her service all the three months; at the end of which the mistress returned to Christchurch, and there the year's service expired, she having served her mistress the whole year in pursuance of the first hiring. The question was, Whether this N. gained any settlement in Fawley Court, by living with her mistress, who was only a visitor? The whole Court were of opinion, that the settlement of the servant does not at all depend on the settlement of the mistress; for if a master or mistress hire a servant for a year, and afterwards remove from one parish to another during that year, it may be properly said that the servant is hired in every parish he shall go into with his master or mistress, and the parish where he lives with his master or mistress the last 40 days of his or her year, is the place of his or her settlement. EYRE J. held, That if a man be hired in Ireland for a year, and afterwards come within the year, and live in England for the last 40 days with his master, that is sufficient to gain a settlement. - FORTESCUE J. said, The old law was, that the firstnight any person came into a town or parish he was called a stranger, the second night a sojourner, and the third night an inhabitant; and the order removing her from St. P. to Fawley Court was confirmed. sequence of what fell from Lord M. A service performed under a hiring for a year, in a different parish from that where the master dwells, gains a settlement 392. St. Peter's Oxford v. Chipping Wycomb, M. T. 9G.1. 1 Stra. 528.-The master of the Oxford stage-coaches hired a servant for a year, to stay in an inn in W., where the coach baited, to take care of the horses: he lived there for the whole year, but inasmuch as the master lived all the while in O., the Sessions 'adjudged the settlement of the servant to be with him. ET PER CURIAM: The order must be quashed, for the settlement is gained by the service, which was in W. there. S. C. Fort, 315. The service need not be 393. Rex v. Whitechapel, E. T. 11 G. 1. MSS. -The case stated, That the pauper was hired for five years at W. to work in a glass-house, and was to have 10s. a week; and to provide himthe place where self with diet, lodging, &c. It was insisted, that the meaning of performed at 1 |