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Fourthly, Of settlements by

marriage.

Prima facie evidence of a set

tlement in the appellant parish is sufficient to call for an answer.

Fifthly, Of settlement by hiring and service.

The statutes relating to settlements.

shew some settlement of the pauper ont of the parish appealing: for this purpose the appellants produced a copy of the register of the birth of the pauper. On the other side it was objected that this was not sufficient, but that the settlement of the husband ought to have been shewn, and that to identify the pauper it was necessary to prove her marriage. The sessions adjudged, that the proof of the birth of the pauper was sufficient, and that the onus probandi of the marriage lay upon the respondents in order to prove their case, and quashed the order. A motion was made to quash the order of sessions upon the ground, that the pauper having been removed as a widow, imported that it was a removal to her late husband's settlement, and that her maiden settlement was nothing to the purpose. But the Court said: it may be the husband had no settlement; and if he had, till discovered, her own would in the mean time remain. It is enough in the first instance: the sessions have done right. Rule denied.

Rex v. Harberton, 13 East, 311; 1 Nol. P. L. 293. Elizabeth, the wife of Charles Hill, and A. H. and E. H., her daughters by her said husband, were removed from Harberton to Drewsteignton, against which order there was an appeal. The respondents proved, that, in 1806, the pauper married Charles Hill, in Chagford; and from a copy of the registry of the marriage which was produced, it appeared that he was therein described to be of the parish of Alverdiscott, and Elizabeth was therein described to be of Drewsteignton. They also examined the wife, who proved that the children mentioned in the order were born after the marriage, and also that her husband was with her in Harberton, a little after Christmas last, since which time he had left her, and she had not seen him since; that he was not there when she was examined before the justices previous to, nor at, the time of her removal, and that she did not know her husband's settlement. The respondents gave no evidence to account for the absence of the husband, or of any further search having been made for him, or inquiry as to his settlement. The appellants produced no witnesses, nor did they offer any evidence of the husband's settlement. The sessions quashed the order. Soon after this case had been opened at the bar, the Court said that there could be no doubt but that the evidence offered by the respondents, of the wife's maiden settlement, was prima facie sufficient, and that it lay upon the appellants to rebut it, by giving evidence of the husband's settlement in a different parish: but the sessions having decided against the respondents, upon the supposition that they had not used due diligence in endeavouring to procure the attendance of the husband, or in accounting for his absence, or inquiring as to his settlement, without going further into the consideration of the case, this Court sent it back to be reheard by the sessions, to give the appellants an opportunity of entering into their own case, and of giving evidence of the husband's settlement; and the description in the copy of the marriage register of the husband, that he was of the parish of Alverdiscott, was considered to be no evidence of his having a settlement there.

(Fifthly)—Of Settlement by Hiring and Service. (a)

This subject seems very naturally to divide itself into two parts; first, the hiring or contract, and secondly, the service, which together give this kind of settlement. But each of these parts, and especially the first, is susceptible of a variety of subdivisions, by which the essential ingredients to complete the right of settlement may become more obvious, and the rules of law applicable to them may be more clearly explained. In the first place, however, it is proper to state the various enactments which affect this species of settlement.

the

By 13 & 14, Car. II. c. 12, s. 1, after reciting the evils resulting from vagrancy of the poor, it was enacted, “that it shall and may be lawful, upon complaint made, by the churchwardens or overseers of the poor of any parish, to any justice of peace, within forty days after any such person or

(a) See division of the subject, unte, 273.

Fifthly, Of settlement by hiring and service.

Persons remov able, unless security given for the parish. discharge of the

in certain cases.

persons coming so to settle as aforesaid, in any tenement under the yearly value of ten pounds, for any two justices of the peace, whereof one to be of the quorum, of the division where any person or persons, that are likely to be chargeable to the parish, shall come to inhabit, by their warrant to remove and convey such person or persons to such parish, where he or they were last legally settled, either as a native, householder, sojourner, apprentice, or servant, for the space of forty days at the least, unless he or they give sufficient security for the discharge of the said parish to be allowed by the said justices. Sect. 3. Provided also, "that (this act notwithstanding) it shall and may be lawful for any person or persons to go into any county, parish, or Certificates to place, to work in time of harvest, or at any time to work at any other work, prevent removal so that he or they carry with him or them a certificate from the minister of the parish and one of the churchwardens and one of the overseers for the poor for the said year, that he or they have a dwelling-house or place in which he or they inhabit, and hath left wife and children, or some of them there (or otherwise as the condition of the persons shall require), and is declared an inhabitant or inhabitants there: and in such case, if the person or persons shall not return to the place aforesaid, when his or their work is finished, or shall fall sick or impotent whilst he or they are in the said work, it shall not be accounted a settlement in the cases abovesaid, but that it shall and may be lawful for two justices of the peace to convey the said person or persons to the place of his or their habitation as aforesaid, under the pains and penalties in this act prescribed: and if such person or persons shall refuse to go, or shall not remain in such parish where they ought to be settled as aforesaid, but shall return of his own accord to the parish from whence he was removed, it shall and may be lawful for any justice of the peace of the city, county, or town corporate where the said offence shall be committed, to send such person or persons offending to the house of correction, there to be punished as a vagabond, or to a public workhouse in this present act hereafter mentioned, there to be employed in work or labour; and if the churchwardens and overseers of the poor of the parish to which he or they shall be removed, refuse to receive such person or persons, and to provide work for them, as other inhabitants of the parish, any justice of peace of that division may and shall thereupon bind any such officer or officers in whom there shall be default, to the assizes or sessions, there to be indicted for his or their contempt in that behalf."

By 1 Jac. II. c. 17, s. 3, it is enacted, "that the forty days' continuance of such person in a parish, intended by the said act to make a settlement, shall be accounted from the time of his or her delivery of notice in writing, (which they are hereby required to do,) of the house of his or her abode, and the number of his or her family, if he or she have any, to one of the churchwardens or overseers of the poor of the said parish, to which they shall so remove."

Settlement by forty days' resivery of notice.

dence from deli

The 3 W. & M. c. 11, s. 3, enacts, "that the forty days' continuance of Notice to be pubsuch person in a parish or town, intended by the said acts to make a settle- lished. ment, shall be accounted from the publication of a notice in writing, which he or she shall deliver, of the house of his or her abode, and the number of his or her family, if he or she have any, to the churchwarden or overseer of the poor, which said notice in writing the said churchwarden or overseer of the poor is or are hereby required to read, or cause to be read publicly, immediately after divine service in the church or chapel of the said parish or town, on the next Lord's day when there shall be divine service in the same; and the said churchwarden or overseer of the poor is or are hereby required to register, or cause to be registered, the said notice in writing in the book kept for the poors' accounts."

But the 35 Geo. III. c. 101, s. 3, enacts, "that no person coming into Notices abolishany parish, township, or place, shall, from and after the passing of this ed. act, be enabled to gain any settlement therein by delivery and publication of any notice in writing."

By 3 W. & M. c. 11, s. 4. "No soldier, seaman, shipwright, or other artificer or workman employed in their Majesties' service, shall have any settlement in any parish, port town, or other town, by delivery and publication of a notice in writing as aforesaid, unless the same be after the dismission of such person out of their Majesties' service."

Soldiers, &c., not ment by notice to gain a settletill after dismission.

Fifthly, Of

settlement by hiring and service.

Hiring and ser-
vice for a year,
of unmarried per-
son, &c., a settle-
ment.

The hiring and
service must be
for one whole
year.

No person bound apprentice, or

vant, to one who

came into a pa

rish by certifi

cate, shall gain a settlement there

hiring and ser

vice, &c.

Sect. 7 enacts," that 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 settlement therein, though no such notice in writing be delivered and published, as is herein before required.” The 8 and 9 W. III. c. 30, s. 4. "And whereas some doubts have arisen touching the settlement of unmarried persons, not having child or children, lawfully hired into any parish or town for one year, be it therefore enacted and declared by the authority aforesaid, that no such person so hired as aforesaid, 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."

And the 12 Anne, c. 18, s. 2, reciting the provision in the 8 & 9 W. III. c. 30, as to poor persons residing in other than their own parishes, under being a hired ser- certificates, and that many persons bringing such certificates frequently take apprentices and hire and keep servants, who thereby obtain settlements and become a great burthen to such certificated parishes: enacts that, If any person whatsoever, who, upon or after the 24th of June, 1713, shall be an by reason of such apprentice, bound by indenture to, or shall, upon or after the said 24th of June, 1713, be a hired servant to or with any person whatsoever, who did come into or shall reside in any parish, township, or place, in that part of Great Britain called England, by means or licence of such certificate, and not afterwards having gained a legal settlement in such parish, township, or place, such apprentice, by virtue of such apprenticeship, indenture, or binding, and such servant by being hired by, or serving as a servant, as aforesaid, to such person, shall not gain or be adjudged to have any settlement in such parish, township, or place, by reason of such apprenticeship or binding, or by reason of such hiring or serving therein; but every such apprentice and servant shall have his and their settlements in such parish, township, or place, as if he or they had not been bound apprentice or apprentices, or had not been an hired servant or servants to such person, as aforesaid; any act or acts of parliament to the contrary notwithstanding.

The repealed friendly society

act.

Provisions to prevent settle. ments being

gained under particular circumstances.

Requisites in

hiring to give a

By 33 Geo. III. c. 54. s. 24, "No person who shall be an apprentice, bound by indenture to, or shall be a hired servant to or with any person who did come into or shall reside in any parish, township, or place, under the authority of this act, and not afterwards having gained a legal settlement in such parish, township, or place, shall gain or be adjudged to have any settlement in such parish, township, or place, by reason of such apprenticeship or binding, or by reason of such hiring or serving therein; but all such apprentices and servants shall have their settlements in such parish, township, or place, as if they had not been bound, or had not been hired to such person as aforesaid; any act or acts of parliament to the contrary notwithstanding. But the recent act relating to Friendly Societies, does not contain the like provision. See Vol. II. title, Friendly Societies.

By 52 Geo. III. c. 72, s. 8, it is enacted, "That from and after the passing of this act, no person or persons shall, by residence in any house, lodge, or other building erected or to be erected within the said forest, (of Alice Holt, in the county of Southampton), or by hiring and service either for the preservation of the said woods or plantations, or the game in the said forest, gain thereby any settlement in the parish of Binsted in the said county in which the said forest is situate."

By general turnpike act, 3 Geo. IV. c. 126, s. 51, and 4 Geo. IV. c. 95, s. 31, no apprentice or servant of a collector or renter of tolls, or weighing machine, or residing in toll-house, shall thereby gain a settlement; and see Chitty's Col. Stat. Vol. I. 492, note (m.)

There are also other statutory provisions precluding persons coming into parishes under particular circumstances, from acquiring settlements in those parishes, whilst they continue within the operation of those provisions, as will be seen hereafter.

Having thus collected the enactments which affect a settlement by hiring general of a valid and service, it will be found by the judicial decisions which are given in the following pages, that the requisites of this description of settlement may be stated as follows:

settlement.

1st. With respect to the hiring.-That the master, or mistress, and ser

vant, whether male or female, must be capable of entering into such a contract with each other; and all persons, (except husband and wife), however nearly related to each other, may make such a contract, even though one or both parties be under age.

2nd. The parties must not merely be competent to make a binding contract as between themselves, but they must be in that unfettered condition which the poor laws require in order to create a right of settlement by such contract duly performed. For instance, the master must not be a certificate man, nor must the servant be already under a subsisting contract as an apprentice, or soldier, or married, or a widower with children, &c.

3rd. The contract must be for a year prospectively from its date; but it is not essential that it should be actually so expressed, for if it can be collected from the other terms of the contract, as the wages, notice to leave, &c., that the parties intended that the hiring should be for a year, that will suffice. 4th. The master must have the control over the servant's whole time and services:-for if it is stipulated by the contract that the servant shall have the right to certain days or even hours to himself, independently of his master, although he in fact employ those hours in his master's service, being remunerated for them, the contract will not confer a settlement.

Fifthly, Of settlement by

hiring and

service.

5th. With respect to the service.-This likewise must be for a year; though intervals of absence by the master's authority will not prejudice: for Requisites of the the master may dispense with a portion of the service.

6th. It is not necessary that the whole year's service should be under the yearly hiring, though it must be in the same service; for if a person serve a few months without any yearly hiring, and then, without quitting or suspending the service, contract to serve the same master for a year, and continue to serve under this contract a length of time sufficient, (even though it be forty days only), when added to the time served before the hiring for a year, to make up a whole year's service, the settlement will be complete.

7th. It is not essential that the service should be under the same master ; for if the same service is continued under the lessee, assignee, executor, &c., of the master with whom the contract was made, and the service in part performed, it will be sufficient for the purposes of the settlement.

8th. It is not necessary that any part of the service should be in the parish or place where the contract of hiring is made; or that the whole year's service should be in one and the same parish or place; or that it should be in the parish or place where the master resides: for wherever the servant resides the last forty days for the purposes of the service, there he will acquire his settlement.

9th. The forty days' residence for the purposes of the service, are not required to be consecutive; though they must be within the compass of a year. Thus if a servant during a hiring and service for a year, serve in several parishes, his settlement will be in that parish in which he has last served, if in the whole he has resided and served there forty days.

Such are the rules of law-by which settlements by hiring and service are governed.

The decisions will be arranged under the three following heads and subdivisions.

I. Of the Contract of Hiring;—and herein,

Of the Parties to the Contract.]

What amounts to a Contract.

Where a Contract may be implied.

service to give a settlement.

First,

Secondly,

Thirdly,

Fourthly,

Where the Contract is indefinite.

Fifthly,

What is a Hiring for a Year.

Sixthly,

Weekly or Monthly Wages and Notice.

Seventhly,

Hiring by the Job.

Eighthly,

Ninthly,

Tenthly,

Retrospective Hiring.

Conditional Hirings.

Hirings made purposely to avoid a Settlement.

Eleventhly,

Exceptive Hirings.

Twelfthly,

Hiring with Limitation of Working Hours.

Thirteenthly, Imperfect Apprenticeship not a good Hiring.

Fifthly, Of settlement by hiring and

service.

First, Parties to the contract.

A widower may gain this settle. ment.

If a married man

subject to approbation, and his wife die before the agreement is complete, and then the hiring be completed, it is sufficient.

II. The Service under the Contract;—and herein,
First, Of Connecting Services under distinct Hirings.
Secondly, Of Lapse between Connected Services.
Thirdly, Of Dispensation.

Fourthly, of Change of Master in the same Service.
Fifthly, of Dissolution.

III. The Place in which the Settlement is Acquired.

I. Of the Contract of Hiring.

First, Of the Parties to the Contract.(a)

The 3 W. & M. c. 11, s. 7, enacts "that if any unmarried person not having child, or children, shall be lawfully hired into any parish or town for one year, such service shall," &c., see ante, 318. Therefore the servant must be unmarried, without children, and sui juris.

The master may be a relation: he must not be a certificate man.

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Any Unmarried Person."] Anthony v. Cardigan, 2 Bott, 177; 1 Nol. P. L. 339, it was held that a widower is within the meaning of the act, and may gain a settlement by hiring and service.

Rex v. Banknewton, 2 Burr. S. C. 455; 2 Bott, 179; 1 Nol. P. L. 339. agree to a hiring In this case the pauper, a married man, agreed on the 16th of February, with the son of H. W., to serve H. W. for a year from the 24th of that month, at five guineas' wages, provided H. W. should approve the terms. On the 18th the pauper's wife died, and on the 24th he went into the service of H. W., who on that day agreed to the terms made by his son. By the Court: It is clear that the hiring was on the 24th, for the father might have dissented from the conditional agreement made by the son on the 16th; a settlement was therefore gained by the hiring and service.

If the man be single when the marrying be

contract is made,

tween the hiring

and entering upon the service will not defeat

the absence of

fraud.

In Rex v. Allendale, 3 T. R. 382; 2 Bott, 180; 1 Nol. P. L. 338. The pauper being unmarried, was hired for a year to serve T. B. at Allendale, as a hind. It is the custom of the country to hire married men as hinds, because their wives are bound to perform certain services for the master in time of harvest; and when the wife of a hind dies, he must hire a female servant to perform such services. It was in the contemplation of the settlement in both the master and 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 his service, he married, and entered upon his service a married man, and served out the whole year a married man. It was contended, that the time when the service commences, and not the time of the hiring, is the criterion, in determining whether the case comes within the statute.-By Lord Kenyon, C. J. The principle on which this question must be decided has been long since settled. In Farringdon v. Witty, and Rex v. Banknewton, the Court seemed to think, that the time to be attended to was the time when the contract was made, which has ever since been considered as the rule; he was unmarried when he entered into his contract; and whether he married the day before the service commenced or afterwards, it makes no difference.-Buller, J., said, that neither the custom of the country, nor the agreement between the parties, went to compel this pauper to marry before he entered upon this service; he was at liberty to do so or not, as he pleased. The custom of the country only amounts to this, that part of the service is to be performed by a female; it is therefore indifferent to the master whether the servant be married or not, because if he be single he must hire some female to perform those services. As to the case of a contract at an unreasonable distance of time before the service is to commence, that would be strong evidence of fraud. So if the pauper had been under an agreement to marry, and his master had told him that he should not marry for a month to evade the statute, that also might be considered fraudulent.

(a) See the division of the subject, ante, 319.

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