A pauper was hired to serve for part of a service, the could agree They did The latter might have pressed for a dissolution of the contract, but, instead of that, there was an understanding between him and the justice, that the pauper should either beg his master's pardon or remain the rest of the year in prison. It has been conceded that that does not operate as a dissolution, and I think it may be put either as a constructive service or a dispensation. In the case cited it was held, that the servant gained a settlement, and I cannot see why the imprisonment should have a different effect at the end from that which it had in the middle of the year. It has been urged in argument, that the master, by taking the servant back, is to be considered as dispensing with his service during his absence. But the contract not being dissolved, if the servant were released from prison before the end of the year, the master would be under the necessity of receiving him. For these reasons I am of opinion, that the pauper gained a settlement in T., and that the order of Sessions must be quashed.- HOLROYD J. There is a great difference where the servant's absence from actual service arises, as in this case, at the instance of the master, and where it is occasioned by any criminal act done by the servant, and independently of the master. The ground of the commitment of the servant was absence from his duty for a day: possibly the master might have had a right to discharge him for that neglect, but he neither did that of his own authority, nor applied to the justice to do it, so that the relation of master and servant continued. I think that the service also continued, just the same as if the occurrence had happened in the middle of the year. The servant being imprisoned and punished as a servant, might have insisted upon going back to his master, or the master might have compelled him to return, as soon as he was discharged out of custody.- LITTLEDALE J. In this case, neither the master nor the justice having discharged the servant, the relation of master and servant continued. Then the servant, when in prison, did not absent himself voluntarily from the master's service. The imprisonment was at the instance of the master, the servant might still be ready and willing to work for him. I am, therefore, of opinion, that it must be considered as a constructive service, and sufficient to gain a settlement in T. The order of removal to H. was, therefore, bad. - Order of Sessions quashed. 479. Rex v. Market Bosworth, E. T. 5 G. 4. 2 B. & C.757. — Upon an appeal against the removal of H. S., single-woman, from F. to M. B., the Sessions confirmed the order, subject, &c. The pauper was hired by, and lived with Mrs. W. in the parish of M. B., from Shrove Tuesday 1821, until Old Michaelmas-day following. Three weeks before the last-mentioned day, Mrs. W. asked the pauper "to stay again," to which she replied, that she had no objection if they could agree about wages; they agreed for 37. 10s., and 1s. earnest was paid. At the hiring nothing was said as to the time for which the pauper was to serve. There was no interval between the first and second service. A fortnight before Old Michaelmas her mistress said to her," Hannah, I have hired "you, but mentioned no time; remember you are hired for 51 "weeks." To this the pauper said, "Very well." The pauper lived with Mrs. W. until Old Michaelmas-day 1822. She asked to have her week just before Christmas. Mrs. W. said, “ You shall "have three or four days now, I cannot spare you the whole week." was paid; nothing was then said as to the time for which the pauper was to serve, but a week afterwards the mistress said to the pauper, "I have hired you, but mentioned no time; remember that you are hired for 51 weeks," to which the pauper assent vear. She staid away three successive days and nights then, and had the other four days at different times during the year, returning on each of them to sleep at her mistress's, and her mistress gave her two or three holidays besides. She never was absent without her mistress's permission, and always returned into the service, and at the end of the year received her wages. - BAYLEY J. The question in this case ought to have been decided by the Court of Quarter Sessions, but inasmuch as great expence has been incurred we will pronounce our judgment upon the facts stated in the case. And I am of opinion that a settlement was gained in M. B. It appears, that three weeks before Old Michaelmas, the mistress asked the pauper to stay again, to which she replied, that she had no objection if they could agree about wages; they did agree for 31. 10s., and 1s. earnest was paid. Now, it is quite clear, that that constituted a general hiring for a year, and the question is, Whether the subsequent conversation between the mistress and the ed: Held, that servant amounted to an alteration of the original bargain, so as to this was a good convert that which had been a hiring for a year into a hiring for hiring for a 51 weeks only, or whether it was a dispensation by the mistress with one week's service? Now it is laid down in Mr. Nolan's Treatise on the Poor Laws (a), that where the absence of the servant (a) Vol. i. takes place on the master's account and at his request, the Courts p. 399. have been inclined to infer a dispensation, inasmuch as the absence originates with him in whom the power of dispensation is vested, and is only acquiesced in by the servant. Now, apply that rule to the present case. There having been a general hiring for a year, the mistress afterwards states to the servant that she had hired her, but that she had mentioned no time, and desires her to remember that she was hired for 51 weeks. The servant made no overture to the mistress for a change of the original agreement. According to the above rule, therefore, this ought to be construed to be a dispensation: the mistress acknowledges that there had been a hiring, and if she intended to explain the original agreement, her explanation of it was false; for, in the first instance, there is a hiring for a year at an entire sum of 37. 10s., and there is no stipulation afterwards that the pauper was to be paid wages for 51 weeks, at the rate of 31. 10s. for the whole year. I think, therefore, that there was no alteration of the original bargain, but that there was a dispensation with the service of the pauper for one week, and I think that the Sessions were warranted in considering this either a case of dispensation or of fraud. I cannot distinguish this case from that of Rex v. Sulgrave. (b) There the pauper was hired in February to serve till Old Michaelmas. On the Friday before Old Michaelmas, his master asked him if he would stay again, the pauper said he would if they could agree about wages, and asked 51. 5s., which the master thought too much. Afterwards the master said he would give him 5l. 5s.. and he gave him 1s. in earnest; but while he was putting his hand in his pocket for the shilling, he said, you shall go away a fortnight before Michaelmas, because of your settlement, and that he would give him that time to get what he could, to which the servant assented. It was held that this was a mere dispensation with the service for that time, and not such an exception out of the original contract as would make the hiring insufficient for the purpose of gaining a settlement; and Ashhurst J. in delivering his judgment, (b) Ante,pl. 454. The declaration of the pauper's father made to his wife respect ing his having been hired for a year, and served it in a particular parish, is admissible evidence in an inquiry into the settlement of his son. But see Rex v. Fry stone, post, pl. 487. and Rex v. Chadderton, post, pl. 830. contra. said, "that the contract was complete before any thing was said "relative to the fortnight's absence; and that this was a dispens"ation with the service, and not an exception out of the original " contract. An exception is a stipulation on the part of the person for whose benefit it is introduced, but here it was not "made at the request of the servant, but on the offer of the "master." Upon the authority of that case, as well as upon general principles, I am of opinion that the Sessions were warranted upon these facts, in coming to the conclusion that there was a hiring for a year; and that there was no exception in the contract of hiring, but a mere dispensation by the mistress with one week's service: and I think, therefore, that the order of Sessions ought to be confirmed. Order of Sessions confirmed. XIV. Of Evidence of Hiring and Service. 480. Rex v. Nutley, E. T. 12 G.3. Burr. S. C. 701. Two justices removed J. M. from N. to B., but the Sessions quashed the order, and stated the following case: J. P. was hired, in the presence of T. M., since deceased, the pauper's father, by T. S., of the parish of B., to serve for a year as under-carter to T. M.; when it was agreed, that J. P. and M. should come into the service of S. on the day after Michaelmas-day then next; that P. and M. did accordingly come into the service of S. on the day after Michaelmas-day; that P. served S. during the year, as under-carter to M.; that then P. and M. left the service of S.; that he, P., received his year's wages; and that J. M., the pauper, never gained any settlement in his own right: That R. M., the widow of T. M., deposed, "That her late husband, the Mi"chaelmas-day, in the morning, after T. M. left the service of "T. S. of the parish of B., told her he had hired himself to "farmer J. S. in the parish of Ilsfield; and had likewise told her, "that he went into the service of J. S. in the parish of I., at the "Michaelmas, in consequence of such hiring; and that he con"tinued in his service till about a month before the Michaelmas following; at which time, to wit, about a month before Michaelmas-day, the said S. turned him going; and that he also told "her, that he was so turned away because he should not gain a "settlement in the parish of I.; but did not tell her that the said "J. did give that or any other reason for turning him away." And the said R. further deposed, "That T. M. frequently told "her he was turned away against his will." And the said R. further deposed, "That she was married to T. M. at Easter, in "the year in which T. M. told her he was in the service of the "said J.; and that she twice saw him, during the said year, in "the service of the said J.; and during that year, till his being "turned away, considered him in the service of the said J." That so much of R. M.'s evidence as related to the declarations of her husband's evidence, being considered by the Court as mere hearsay, was rejected, as not being admissible in evidence. — LORD MANSFIELD held the settlement in B. to be sufficiently proved: there is evidence enough, both of a hiring for a year, and of a service for a year: besides, the Court should lean, he said, in favour of settlements. - ASTON J. likewise held the settlement to be in B. he thought the hiring for a year in that parish to be. sufficiently proved; and, consequently, that the Sessions had done wrong, in determining that a hiring for a year was not proved. -He also thought them in the wrong, for rejecting the evidence of R. M.; for the widow's account of her family ought to have been received: but he was of opinion, that if it had been received, it would not have amounted to a proof that the turning the man away a month before the time was fraudulent; consequently it must have appeared, upon the whole evidence given by this man's widow, that he had not gained a subsequent settlement in I. The order of Sessions was quashed. Evidence of a pauper's having lived in the capacity of an ostler, and of his having said that he was settled in the parish, will support the 481. Rex v. Holy Trinity, in Wareham, H.T. 22 G.3. Cald. 141. -The case stated, that it was proved, that the pauper's husband was born in the parish of B. R. in the county of D.; and it was also proved by the pauper, E. S., that her husband was abroad beyond sea, and had been so for two years past, if alive; that to her knowledge he lived in the capacity of an ostler with Mrs. L., of the parish of the H. T. in W., some years since deceased, at her house there, about two years, where she had seen him brew; but whether there was any agreement or hiring relating to such service, was not proved; but that she had heard her husband say, he was hired he was settled in the parish of the H. T. in W.-LORD MANS- for a year. FIELD: The Sessions have drawn their conclusion, that he was hired, and I think they have done right. BULLER J. Though the evidence is slight, there is nothing to contradict it. WILLES and ASHHURST J. concurring, the rule was discharged, and both orders affirmed. inference that cerning his settlement, seem to after his decease; but if the settlement depend on a be admissible written instrument, it must first be shown that inquiry has been made after the written instrument.But see Rex v. 482. Rex v. St. Sepulchre, London, T. T. 25 G.3. EDITOR'S The declaration MSS.-F. and her three children, being removed from B. to St. of a husband, as S., THE SESSIONS confirmed the order, and stated that the to facts conpauper was born in St. L., that about 19 years since she married her late husband C. F., who died about a year and a half ago; that some time before his death her said husband did, in her presence and hearing, inform the Secretary of the Lying-in-Hospital in the county of M., that he was, before his marriage, a written articled servant for two years to S., in the parish of St. S., and that he duly served him in the said parish two years under the said articles; that the service was completed before his marriage with the pauper; that he worked at buckle-cutting, and received 17. 1s. per week; and that he lodged and boarded in the house of his master, for which he paid 9s. a week. It also appeared that the master, S., had been dead about 12 years, and that the pauper never saw the articles under which her husband served; nor were the articles produced at the hearing of the appeal; nor was any evidence given of any inquiry after them.- BEARCROFT showed cause. The only question is, on the admissibility of the evidence. It is not usual for this Court to enter into that question, or to interpose in a settlement-case, after the evidence has been received at Sessions, because the evidence might have been given. But this was good evidence, and it is an invariable rule at all Sessions to receive evidence of what the husband or father said, when dead, or run away, as to facts concerning the settlement, though not generally that he was settled. There are other exceptions to the general rule, that hear-say is no evidence. What a bankrupt says before the act of bankruptcy is evidence; as, when he declares an intention to abscond, although he cannot Frystone, post, pl. 487. contra. (b) See post, pl.598. be a witness to prove an act of bankruptcy. The master in this case had been dead 12 years; and there was no public repository where such agreements were kept, so that any inquiry after the articles now was idle: they cited the case of Rex v. St. Michael, (a) Ante,pl.178. Bath (a); and as to the case of St. Saviour, Southwark they said the probability was, that there was no indenture of apprenticeship; or, that it was not stamped: they also cited Rex v. East Knoyle. (b) — SYLVESTER and GOUGH, contrà: The practice at Sessions goes no farther than to show that the widow may be examined as to what the husband said, and the case cited only proves, that where an instrument is lost, or, from length of time, is presumed to be lost, parol evidence is in all cases required; and there cannot be one rule for Westminster Hall, another for one Sessions, and a third for another Sessions. Here the settlement depends on a written agreement, which is not produced, nor shown to be lost. The parish-officers ought to have gone a step farther, and enquired after the articles. But that inquiry is negatived, and therefore the evidence is not competent. WILLES J. The first question is, Whether the declarations of the husband are admissible? In general, such declarations certainly are not; but the usage at Sessions is not so strict, and the only case cited on the subject seems to show that the usage is so. The declarations If a husband man serve for a year, it is strong presumptive evidence that he served under a contract of hiring for a year. of a bankrupt are evidence only as to the quo animo, and do not apply here. On this point I think the order might be supported. But it is not necessary to give an express opinion; because on the other point the case seems to be weak; for it is found that no inquiry was made after the agreement, and what is said in the case of St. M., B., is decisive to show that such inquiry is necessary. ASHHURST J. There is no occasion to give an opinion on the first point, not that I should have any difficulty concerning it. On the second point, there is no rule better established than that the best evidence must be given: there were places here where an inquiry might have been made: the master's executors should have been applied to; or if, on inquiry, it had appeared that he had none, that might have been sufficient. — BULLER J. I am of the same opinion: the presumption is, that there were two parts of this agreement; but it is not even enquired whether the pauper had left any papers. Although it may be probable that the agreement would not have been found, yet an inquiry after it must be shown. As to the first point, what has been said of the declaration of a bankrupt does not apply. In the case of St. Michael, Bath, it was an examination before justices, and in Rex v. East Knoyle the fact was found; and the Court took them as found. Order quashed. 483. Rex v. Lyth, T. T. 33 G. 3. 5 T. R. 327.- Two justices removed T. C. from the township of W. to the township of L. The Sessions on appeal confirmed the order, and stated the following case: On behalf of the respondents it was proved that the pauper was the legitimate son of W. and M. C., and was born in L. On behalf of the appellants, in order to show a derivative settlement in the pauper from his father in a third township, it was proved that W. C., before his marriage, was, a few days after Martinmas 1731, seen and known to be in the service of one M. C., in the township of B., in the said county, as a servant in husbandry; and was from time to time seen and known to act in |