ter period re

moved with his master into the parish of B, and

served him there: Held,

that the pauper

did not acquire a settlement in that parish, in

asmuch as no part of his ser vice there was under a yearly hiring.

(a) Ante,pl 399.

(there being no ceeding. There was no interruption of the service; and under interruption of the second hiring the pauper served his master about half a year the service), and in B., and then removed with him to S., in which latter parish he during the lat finished his service under such second hiring, and slept the last 40 nights in S.- BAYLEY J. I am of opinion that the order of Sessions is right. If the pauper gained any settlement in the parish of S., in this case, it would follow, that wherever there was once a hiring for a year, and the pauper afterwards continued with the master as a weekly servant for 20 years, and resided in 20 different parishes, he would be settled in the parish where he resided for the last 40 days, although at that time he were not hired for a year. It appears to me that the case of Rex v. Croscombe (a) does not bear upon the present case. There the pauper hired himself to live with Dr. L. as his servant for a year, for 4. and a livery; he did accordingly live with his master during that year, and without coming to any new agreement, continued with his master in the same parish about a quarter of a year longer. The master then removed to another parish, and the pauper continued to live with him about six months in the latter parish upon the terms of the first contract, and was paid wages at the same rate. Now, in that case, at the expiration of the first year, a new hiring for a year was fairly to be presumed, from the circumstance of the pauper continuing in the same service without any alteration of the terms; and if the service in the last year was to be considered as a service under a renewed yearly hiring, that case does not at all bear upon the present. That such was the ground upon which the Court proceeded in that case appears from what was said by Willes J. in delivering the judgment of the Court in The King v. (b) Ante,pl. 376. St. Giles, Reading (a); "The King v. Croscombe does not apply, "because the Court presumed the continuance of the whole con"tract." There being no authority, therefore, bearing upon the subject, we must look to the words of the statute 3 & 4 W. & M. c.11. s.7.: they are, "if any unmarried person, not having child "or children, shall be lawfully hired into any parish or town for one year, such service shall be adjudged and deemed a good set"tlement therein." The word therein refers to the parish or town into which the party has been hired for one year. The settlement, therefore, attaches to him in that parish or town where he has the character of a servant hired for a year. The 8 & 9 W. 3. c. 30. recites, "that doubts had arisen touching the settlement of un"married persons, not having child or children, lawfully hired "into any parish or town for one year;" and enacts, "that no "such person hired as aforesaid (i.e. lawfully hired into the parish for one year), shall be adjudged or deemed to have a good "settlement in any such parish or township, unless such person "shall continue and abide in the same service during the space of "one whole year." The latter statute, therefore, requires, that in order to gain a settlement by the hiring and service mentioned in the former statute (which was a hiring into that parish for a year), the party should continue in the same service for the space of one whole year. The former statute requires, that the contract should be for a year, and that the service should be under the contract of hiring there mentioned. The latter statute requires, besides, that in order to gain a settlement, the service should continue for a year. I am, therefore, of opinion, that a settlement

can be gained by hiring and service in that parish only where the party has the character of a servant hired for a year; and that being so, the pauper, in this case, did not gain any settlement in the parish of S., and, therefore, the order of Sessions is right. -. HOLROYD J. The case of Rex v. Croscombe is distinguishable from the present, upon the grounds stated by my brother Bayley.. In that case Lord C. J. Lee, certainly, gave an extrajudicial opinion, that the service in the second year need not be under any contract of hiring, provided it was a continuance of the same service; but when the state of the law, as it existed between the passing of the 3 & 4 W. & M. c. 11. and the 8 & 9 W.3. c. 30., comes to be considered, I think it perfectly clear that that opinion cannot be supported. By the 13 & 14 Car. 2. c. 12. overseers were authorized to remove a pauper to a parish which was his last place of settlement for 40 days, either as a householder, &c. or as a servant. At that time, therefore, a service for 40 days conferred a settlement. The 3 & 4 W. & M. c. 11. s. 3. enacts, that the 40 days' continuance of any person in a parish or town, which then conferred a settlement, should be accounted from the publication of a notice in writing, which he should deliver to the churchwarden or overseer of the poor, and the latter was to cause it to be read publicly in church. Sect. 6. provided, that any person exercising an annual office in the parish during the year, should gain a settlement without having delivered such notice in writing; and sect. 7. enacted, that if any unmarried person, not having any. child or children, should be lawfully hired into any parish or town for one year, such service should be adjudged and deemed a good settlement therein, although no notice in writing were delivered and published. Now, the words such service must refer to a service under the contract of hiring mentioned in the former part of the elause; and if that be so, this statute clearly required that the service should be under a contract of yearly hiring. The legislature in this statute seem to have considered the exercising of an annual office in the parish during the year, and the being hired into the parish for a year, as equivalent to the notice to the parish which was required by the former section. Inasmuch, however, as the exercising of the parochial office was not sufficient to give a settlement, unless it were exercised during the year, doubts were entertained whether the service under the contract of hiring should not also continue during a year. If the service for the year were not required by that statute, the contract of hiring for the year is the only circumstance from which the parish could be deemed to have had notice; and if so, it was essential that the contract should be made in the parish. But doubts being enter tained whether service for a year was required, the 8 & 9 W. 3. c. 30. was passed. Sect. 4. recites, that doubts had arisen touching the settlement of persons unmarried, not having any child or children, lawfully hired into a parish or town for one year; and then enacts, that no such person so hired as aforesaid shall be deemed to have a good settlement in such parish or township, unless such person shall continue in the service during the space of one whole year. The latter statute did not intend to dispense with any thing required by the former, but to add another qualification to those already required to confer a settlement. The service spoken of in the latter statute is the same service that was

The 40 days' residence ne

cessary to confer a settlement by hiring and service must be within the compass of a year, but need not

be under the same year's hiring.

contemplated by the 3 & 4 W. & M. c. 11., viz. a service under a contract of hiring for a year. I think, therefore, that in order to give a settlement in any parish, some part of the service must be under a contract of yearly hiring. That being so, there was no settlement in the parish of S., and the order of Sessions must, therefore, be confirmed. Order of Sessions confirmed.

413. Rex v. Findon, E. T. 6 G. 4. 4 B. & C. 91.-W. S., M. his wife, and five children, were removed by an order of two justices from the parish of R., in the county of Suffolk, to the parish of F., in the county of Sussex, and, upon appeal, the Sessions confirmed the order, subject to the opinion of this Court upon the following case: The pauper, W. S., was hired by the Rev. J. V., on the 2d of November 1807, for a year, and served the whole of that period, and afterwards continued in Mr. V.'s under successive yearly hirings, until the 2d of November 1811, when the pauper was again hired by Mr. V. for another year. The pauper served his master at the parish of St. P., in the city of O., from the said 2d November 1811, until the 14th April 1812. He then accompanied him to several other places till the 2d November 1812, when he was again hired by Mr. V. for another year, and he travelled about with his master till the 20th December 1812, on which day they arrived at F., in Sussex, the appellant parish, where they continued more than 40 days, and afterwards he accompanied his master to the said parish of St. P., in the city of O., where they continued from the 25th February up to the 2d April 1813, a space of 38 days, and on the 2d April 1813 left O. for B., where they continued until the 2d of May following (30 days), when they parted by mutual consent. - ABBOTT C. J. The settlement of the pauper is clearly at O.; he was, undoubtedly, settled there on the 2d of April 1813, having resided there more than 40 days within the last year of his service, and gained no subsequent settlement. It is not necessary that the whole of the residence should be under the last year's hiring.- BAYLEY J. I think this point (a) Ante,pl 410. was, in effect, decided in Rex v.Denham (a), and Rex v. Flambro', which

A service under

a hiring for a year, part per

formed with the original master, and the remain.

der with a stranger, to whom he had let his farm, is

was before the Court in 1819. It has never been decided that the 40 days' residence must be under the last year's hiring.-HOLROYD and LITTLEDALE Js. concurred. - Order of Sessions quashed..

XI. Of Service with different Masters.

414. Rex v. Ivinghoe, E. T. 4 G. 1. Str. 90. N. Y., being settled in C., was, at Michaelmas 1715, hired into the parish of I., by K., to serve him as a shepherd till Michaelmas following: he entered upon the service, and continued with K. till Lady-day, who then paid him half a year's wages, and left the farm to one S., who entered and took all the stock and servants, and, in harvesttime, took Y. off from keeping sheep, and set him to harvest-work, for which he paid him 5s. extraordinary, and at the year's end paid good service, if him the other half year's wages: K., when he left the farm, never there be no dis- told Y. he was no more his servant, nor were there any transactions solution of the between them two towards dissolving the contract: neither did Y. original hiring, ever make any new contract with S. for the last half-year. - THE CHIEF JUSTICE: The statute requires two things; a hiring, and a See S. P. Rex v. continuance in the same service for a year. There can be no Ladock, ante, doubt but that in this case there is a complete and perfect hiring

Fort. 317.

pl. 397.

for a year; but the question turns upon the service. Half of it was actually a service to K., and the rest, in fact, was a service to S.; but there being no new contract with S., nor any dissolution of the first contract with K., it seems considerable, whether the whole shall not be taken to be a service to K. As, if I lend my servant to a neighbour for a week, or any longer time, and he go accordingly, and do such work as my neighbour sets him about, yet all this while he is in my service, and may reasonably be said to be doing my business. If the first contract be not discharged, it must have a continuance, and under it the servant is entitled to demand his wages of the first master. And the 5s. given him by S. is no argument to the contrary, no more than if, in the case I put before, my neighbour had given my servant a gratuity for his extraordinary trouble. What agreement there was between K. and S. does not appear, but here is no act done by the servant that shows his consent to change his master. And, therefore, I take this to be a service for the whole year, pursuant to the first contract, and, consequently, the settlement is at I., where the service was. Powys J. The private reason that I went upon in Rex v. Haughton (a), where it was (a) Ante,pl.867. held that several hirings and services for 11 months gained no settlement, was, because, if we should once get out of the statute, there would be no end, and by the same reason that we abated one day we might abate two, et sic in infinitum. I think, in this case, the settlement is in I.-EYRE J. And so do I. This is a contract for a year between K. and Y., and not to be dissolved during the year without both their consents. There is actually no consent on one side, and but an implied consent on the other. It weighs nothing with me that S. paid the last half-year's wages, for I look upon him only as a person to whom the servant was lent, and there is no doubt but that Y. might have demanded the wages of K. The paying the 5s. is so far from being an argument that the contract was dissolved, that it is to me a strong evidence of its continuance; for when S. goes to set him about harvest-work, "No," says he, "I was hired to be a shepherd, and had small wages ac"cordingly;" and thereupon the other agrees to give him 5s. as an equivalent for the hardness of the work.. FORTESCUE J.: The difficulty arises upon the word same, which may extend to master, parish, and business. And taking it in those senses, this case comes within the words of the statute; and there can be no doubt but that it comes within the reason of it; for he is no more likely to be chargeable now, than if he had actually served K. all the year. Upon the reasons which have been given, I think, here is the same master, the same sort of service in the same parish, and a continuance of the contract throughout the whole.

415. Rex v. Beccles, E. T. 17 G. 2. Burr. S. C. 230.-E., being settled at B., let himself to C., a blacksmith, in L., at the wages of 31. or 31. 10s., to serve him there for one whole year from Michael mas to Michaelmas: he, accordingly, entered upon his service on the Michaelmas-day, and continued therein until the Michaelmas following: he then again let himself for another year to his said master, and continued about 10 weeks; when he and his master agreed to part, and actually did part. Within the year he worked, with his master's consent, for a week, with one Lincoln, as a journeyman blacksmith; and, with the like consent, with one Lawes, for a fortnight; and at some times, not exceeding 24 hours at any

See Rex v. Aynhoe, ante, pl. 368., the which the Court decided in this

reasons on

case.

one time, nor above three days in the whole, within the said year, with his master's consent, went off to sea, in a fishing-boat belonging to M.; and it was agreed between the pauper and his master, at the time of such absence, that he, E., should have all the wages he then earned, his master deducting, during the time of such absence, in proportion to his aforesaid wagers of 31. or 3l. 10s.: Lawes, Lincoln, and M., severally paid E. for the time he so worked with them; and he, E., allowed C., out of his said wages, for the time of his absence: C. received no part of the wages E. earned during his absence; but only deducted a proportional part of the wages. of 31. or 3l. 10s.-LEE C. J.: The whole absence of the present pauper in the first year was just three weeks and three days, by the consent of his master; and the money deducted out of his wages was to be in proportion to his absence. The parish of L. have had all that the words or the intention of the act of parliament require; for there was a clear hiring for a year, and, taking in the ten weeks of the second year, a service for more than a year. We cannot intend any thing of a fraud; for none is stated. The (a) Vide 3 & 4 question depends upon two acts of parliament. (a) Upon the negative act (b), it is not necessary that the service be with the same person; it is sufficient if it be with the successor in the farm, or the assignee. Therefore this act has not been taken so strictly. Then the agreement about the payment of the wages as the servant might want, will not vitiate the contract. Nor will the contract be dissolved by any thing here stated. It is only a licence of departure for a certain time; the contract remains. Indeed where the servant departed, by consent of both parties, three weeks before the end of the term, the contract was dissolved; as in the case of Pawlet v. Burnham. (c) According to the cases that have been determined, the subsequent service of 10 weeks may be taken, in the present case. The service by the master's consent, with another person, was service of the master; it is not necessary that the service be with the same person; nay, if it had been without the master's consent, yet the absence had been dispensed with, by the master's receiving him again. This was no dissolution of the contract, but a mere lending of the service of his servant, than which nothing is more customary in harvest-time: and, by the unanimous opinion of the Court, the orders removing the pauper from L. to B. were quashed.

W. & M. c.11. 8 & 9 W.8.c.30.

(b) 8 & 9 W.3. c. 30.

(c) See a MS. report of this case, post, pl. 424.

If a servant be

hired for a year, his subsequent marriage does not dissolve the

contract between master

and servant, nor

prevent him from serving out the year in

order to gain a settlement.

416. Farringdon v. Witty, E. T. 1 Ann. Salk. 527.- A servant came into the parish of S.; was hired for a year; and having served half-a-year of the time, married a woman in the parish of W.; and the question was, first, Whether the justices, on complaint of the churchwardens, could make an order to remove him to the place of his last legal settlement? Secondly, Whether his serving here would not gain a settlement? To the first point it was admitted, that the contract between the master and servant was not dissolved by the marriage; and admitting it might be dissolved by an order made on complaint of the master, yet without that, and upon complaint of the officers only, it could not be dissolved; therefore BRODERICK (of counsel) admitted that the justices could not, in