the principal case, so remove him, as that he could not come to serve his master, but held he might be removed, so as that the order should disturb him, and prevent a settlement; and this he said was a medium that would neither prejudice the contract, nor evade the statute. He compared it to an order to remove on 14 Car. 2., before 40 days' stay; in which case, the very making of the order obstructed a settlement; and it may be executed after the 40 days.-HOLT C. J. and POWELL, contrà, That an order to disturb him, and not to remove him, was not within the meaning of the act: disturbing him, without power to remove, is vain; and this does not unsettle, nor is it like the case of 40 days. Secondly, It was questioned, whether such a stay, &c., would gain a settlement; because the statute makes the party's being unmarried a qualification as well as his stay, viz. " If any such person, being unmar"ried, being hired, &c., such service, &c.," so that the words "such service" go to all; not only the stay, but the state of the party. To this POWELL inclined; HOLT Č. J. contrà. "Such" is only such service; and the marriage does not hinder the service. The contract continues. Suppose the woman he marries be of the same parish, shall not that gain a settlement? the service is no impediment. S.P.deter 417. Rex v. Clent, M. T. 1 G. 1. Foley, 148.-It appeared upon Marriage the order of Sessions, that one J. C. was hired for a year in the between the parish of E. L., being an unmarried man, for 37. 10s. wages, about hiring and the month of August, and served for the said year; but that about completion of the month of February then next following his said hiring, he was married, and continued after such his marriage, to the end of the said year, in his said service. Two justices removed this J. C. and his wife from C. to E. L.; but, upon appeal, the Sessions quashed that order, and stated the above case; and now THE COURT of KING'S BENCH quashed the order of Sessions, and held, that the hiring for a year, and service for that whole year, though the pauper married before his year was out, gained him and his wife a settlement in E. L. mined in the same term be tween the pa parishes of St. St. Dennis. Saviour and If a servant be unmarried at the time of the hiring, his marwill not prevent riage afterwards his gaining a settlement, by serving the year. A master can turn away a servant hired for a year on account of his 418. Rex v. Sutton, M. T. 1 G. 2. 2 Sess. Cas. 133.-J. S., being an unmarried person, and having no child or children, served A. B. from March 1725 to March 1726, and in September intermediate he married, and served out his year. The question was, Whether this was a good service to entitle him to a settlement? - THE COURT held it was good, and that to be unmarried at the time of the hiring is the only thing necessary in order to gain a settlement by the service, for that the service is not dissolved by the marriage. 419. Rex v. Hanbury, T. T. 26 & 27 G. 2. Burr. S. C. 322.The pauper was hired for a year, from Michaelmas to Michaelmas; but he came three days after the former Michaelmas: staid one day after the latter; and was absent, at different times, near a fortnight, for which absence 6s. 6d. were abated in his wages. This service was in T. From thence he went to H.; where he during the serwas hired for a year, and served three quarters; and then married vice of such a woman with child. Of this his master complained to a justice of year. peace. The justice thought the matter complained of to be a sufficient cause for the pauper's being discharged; and allowed of his discharge; but made no order in writing touching the matter. The master thereupon discharged him, against the pauper's - LEE C. J. said, the great question was upon the cause of discharge, Whether that was sufficient? WRIGHT J. thought consent. having married If a servant during the year, and serve 11 months, and then move into another parish, and continue to serve the same master, these services cannot be united, because at the of the second year he was there was not any reasonable cause; for what objection is the marriage? It is no misdemeanor; and the justice cannot discharge but for a misdemeanor. -- DENNISON and FOSTER JS. He cannot be thus discharged against his own consent. Consequently, the settlement in H. goes on, and is his last legal settlement. 420. Rex v. St. Giles, Reading, T. T. 13 G. 3. Cald. 54. — D., under a general being an unmarried man, on the 19th of December 1763, went into hiring marry the service of W., who then kept the Bear Inn, in R., under a general hiring as a post-boy, and continued in that service in the parish of St. M. for the space of seven months, where he married his present wife, E. After his marriage he remained in his master's service in the said parish, for four months, when he took lodgings in the parish of St. G. in R., and removed thither with his wife, where he slept for the space of seven months, continuing to serve his master for the whole of the said last-mentioned seven months, without coming to any new hiring, and so served him the space of 18 months in the whole, and then left his service. commencement WILLES J. delivered the judgment of the Court. This case depends upon the construction of the 3 W. & M. c. 11. § 7. The act was intended for the benefit of unmarried persons; and the principle of it is, that the parish that reaped the benefit of the labour of a man unencumbered with a family, ought to make a provision for that man, when disabled or incapable of working and providing for himself, but not for others from whom they had derived no benefit; that the burthens they were to be subjected to should be equal and correspondent, not unequal and disproportionate, to the benefits received from the pauper's labour. Then the 8 & 9 W. 3. c. 30. uses the very same words as the former statute; unmarried persons not having child or children." The meaning of these acts is obvious; that the labour of one man shall not be sufficient to encounter a parish for the maintenance of a numerous family. As to the other ground, the law is, as has been (a) Ante,pl.405. determined this term in the case of The King v. Hedsor (a), and The (b) Ante,pl.419. King v. Hanbury (b), that marriage does not dissolve the contract if married and incapable of being hired. 66 it happen during the year in which a man has been hired as a single man. To such only the benefit of the act was meant to be extended; and for this reason, that married persons ought to continue in the settlement acquired previous to their marriage. If there had been a residence of 40 days in the parish of St. G. at the end of the first year, the pauper would have been well settled there; it would have been within the case I have cited of The King v. Hedsor; but that is not the present case. The case of (c) Ante,pl.399. The King v. Croscombe (c) does not apply; 1. Because that was the case of a servant unmarried during the whole of the year. 2. Because the Court did there presume the continuance of the whole contract. Here the pauper was incapable of making a new contract at the commencement of the second year; presumption can go no further; and at that time he was a married man. In this case, suppose at the end of the first year a new agreement had been made between the master and servant; a service under that could not have given the pauper a settlement. Shall he then by an implied contract do that, which in express and direct terms he could not do? If the original hiring were constructively to be continued throughout the second year, it might last for 20 years; and parishes, on such a construction as is contended for in support of these orders, might be burthened by retrospect with families from whose labour they had received no benefit. and the com mencement of 421. Rex v. Allendale, T. T. 29 G. 3. 3 T. R. 382. D. was Marriage behired for a year to serve B. at A. from May-day 1786 to May-day tween the hiring 1787 as a hind. It is the custom in that country to hire married men as hinds, because their wives are bound to perform certain the service does services for the master in the time of harvest; and when the wife not alter the of a hind dies, he must hire a female servant to perform such settlement. services. It was in the contemplation of both the master and the servant, and perfectly understood by them, at the time of hiring, that the pauper would marry before he entered upon his service. After such hiring, and before the commencement of the service, he married, and entered upon his service a married man, and served out the whole year a married man at A. THE COURT said the principle of this case had been settled by the case of Farringdon v. Witty (a), and the case of Rex v. Bank Newton (b), and held his settlement to be in A. XIII. Of Absence from the Service. (a) Ante,pl.416. (b) Ante,pl.259. fault or contrivance of the master shall not impede a settle 422. Rex v. Hardingham, M. T. 1 Car. 2, Stiles, 168. An An absence inhabitant dwelling in the parish of B. hired a maid servant for a created by the year, and covenanted to give her 40 shillings for her wages, and received her into his service. The maid servant some time afterwards fell sick, in his service; and he thereupon turned her out of his service without giving her any thing. The maid, for necessity, ment. in travelling from B. to H., where her friends lived, and where she was born, was forced to beg for relief; whereupon she was sent as a vagrant to H., where she was born. The vill of H. sent her back to B., where she was entertained as a covenant-servant ; whereupon they of B. procured an order of Sessions to settle her at H. The question was, Whether this was a good order or not? - ROLLE C. J. said, that there seemed to be fraudulency in the master, to make his servant a vagrant, so that he might be rid of her; but if one beg meat and drink for necessity, in passing between one town and another, this is not begging to make one a beggar within the statute. - THE COURT, therefore, ordered that the party should be settled at B., where she was entertained for a covenant-servant, and not at H., where she was born. If a maidservant be discharged before year, being with child, she gains no settle the end of the 423. Rex v. Marlborough, T. T. 12 W. 3. 12 Mod. 402. An order was made by two justices for the removal of a servant-maid who was got with child within the year in her service. And BY THE COURT, if one hire a maid for a year, and before the year's end she is got with child, she shall not for that be removed, but shall serve out her time; there shall be a year's continual service to make a legal settlement for the charging of a parish; but till ment. the year be out, none shall disturb the party from serving; and Cald.11. since she is not removable within the year, if she leave her master without his consent, she may be sent back to her service; but then it is to serve her time, not as a charge to the parish. This, however, is good cause to discharge her of her service; and after her master has discharged her, she may then be removed. (c) (a) This concluding sentence is not in the original report of this case, and appears to be added as the opinion of Mr. Bott himself: and on the autho- If master and servant part three weeks before the year expires, by mutual consent, the servant remitting wages for the three weeks, it is a dissolu- S. C. Sett. & 1 Sess. Cas.87. If a servant ab reason of sickness, or to see his mother, with consent, or to seek another 424. Pawlet v. Burnham, M. T. 1 G. 1. EDITOR'S MSS. - Two justices removed H. P. and his wife from the parish of P. to the parish of B. The justices at Sessions on appeal being equal, the order was confirmed, and the following case stated: - The pauper, H. P., lived with his brother J. P. as a covenant-servant for a year in the parish of P. After this service had completely expired, he quitted the parish of P., and went and covenanted himself with one R. A. in the parish of B., to serve him for a year; but three weeks before the expiration of the year, he departed from the service with his master's consent, and abated 6s. out of his wages for the remainder of the year. On these orders being removed into the Court of King's Bench, it was contended, that the absence from his service being by mutual consent, and not occasioned by any thing involuntary on the part of the servant, or by any fault on the part of the master, it was such a departure as rendered the service incomplete, and therefore that the orders settling him at B. should be quashed. On the other side it was urged, that as the case stated that he was a covenant-servant, which must be presumed to be by deed, he could not be discharged by a parol consent, and therefore he continued a hired servant during the year. THE COUrt. As to the purposes of settlement, there is certainly no difference between à covenant by deed, and an agreement by parol. If the hiring be by covenant, perhaps it is not to be destroyed by such consent, and an action may be maintained on it; but as to settlement, here is a clear discontinuance of the year's service. There is no fraud found, nor is there the appearance of any on the part of the master; and can he oblige his servant to gain a settlement nolens volens? The statute of 3 W. & M. c. 11. says, that he must serve for a year; now this man has not served for a year. The order was accordingly quashed. 425. Rex v. Islip, E.T. 7 G. 1. 1 Str. 423. W. was hired for sent himself by a year by S. J. into the parish of I.: during the year he was sick for six days, and incapable of doing any service: afterwards he went, without leave of his master, to see his mother, and staid away four days; and three days before his year was up, he asked leave of his master to go to a statute-fair to be hired, which service, without the master refused; but the servant insisting he must go, the master replied, "I am resolved you shall gain no settlement in "this parish, and therefore if you will go, it shall be for good and "all." "No," says the other, "I will serve out the year ;" and master take him thereupon he went, and never returned during the last three days the consent of his master, yet he gains a settlement if the into service of this work, it is only said, (from the it seems clear that the master may not 5 Eliz. c. 4. § 5. or the 20 G. 2. c. 19. But in the case of a female, servant unmarried it is now determined that the master may turn her away, for this cause, Rex v. Brampton, post, pl. 444.; and by 35 G. 3. c. 101. all unmarried women with child are removable as paupers actually chargeable. See also Rex v. Welford, post, pl. 446., that a master may turn away a male servant who is the reputed father of a bastard child. Rem. 129. Foley, 262. when he came to be paid, the master deducted for the time he again before was sick, and when he went to see his mother; which deductions the year exthe servant agreed to; and the master at the same time abated pires. 6d. for the last three days, which the servant refused to allow; S. C. Sett.& but the master refusing to pay it, the servant took the rest of his - PRATT C. J. delivered the opinion of the Court. In wages. this case there is no doubt but that there was a complete and perfect hiring for a year. The only question is, Whether there has been such a service in pursuance of it as will give a settlement to the party? Three objections have been made at the bar, which it will be proper to take notice of. First, That the servant being sick for six days, and incapable of serving, can never gain a settlement, which is to be acquired only by a service for a year; but here, say they, he did not serve for six days, and so there wants so much of a service for a year. This was lightly touched upon at the bar, and surely there is little in it. A servant that lies thus under the visitation of the hand of God which befalls him not through his own default, is, and must be taken to be, all the while in the service of his master: and if this exception were to be allowed, it might prevent all the settlements in the kingdom: it is not to be presumed, that the servant is less able to provide for himself at the year's end, because he has had a slight indisposition during the year; and that presumption of an ability is the foundation of making it a settlement. Secondly, It was objected, that his going to see his mother without leave was a desertion of the service, and that the time he staid away took so much off from a complete service for a year. As to that we are all of opinion, that it will not prevent the settlement. It was never the intent of the statute, that if a servant happen to stay out a night or two, it should avoid the settlement; but here, the master taking him again, has dispensed with his non-attendance, so there is nothing in that objection. Thirdly, The third, and, indeed, the most considerable objection was, that the going away three days before the year was up, and never returning again during the year, is a forfeiture of the settlement. Now, though that would, primâ facie, be a good objection, yet, as this case is circumstanced, we are of opinion it cannot prevail. Consider how the case stands with regard to the servant; he knew his master designed to part with him at the year's end, and therefore it was high time for him to look out for another place. To this end he applied in a very proper manner for leave to go to the statute-fair, which is a place where, in all likelihood, he might provide himself, and not be obliged to lie idle all the year, it being usual for people in the country to go thither to hire their servants; the master, like an unreasonable man, refused so reasonable a request, coupling it with a declaration, that the servant should gain no settlement with him, which is a badge of fraud on the side of the master that ought not to prevail. As, therefore, the request was reasonable, and upon a just ground on the side of the servant, and the refusal unreasonable on the side of the master, we think the servant's going afterwards without leave is no forfeiture of his former services; especially if we take in the declaration the servant made at that time, that he would serve out the year, and his refusal afterwards to allow the master 6d. for the last three days, |